Chief Commissioner of Police v McCann
[2015] VSCA 362
•18 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0087
| CHIEF COMMISSIONER OF POLICE | Appellant |
| v | |
| CALUM McCANN | First Respondent |
| - and - | |
| POLICE REGISTRATION AND SERVICES BOARD | Second Respondent |
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| JUDGES: | OSBORN and McLEISH JJA and GINNANE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 November 2015 |
| DATE OF JUDGMENT: | 18 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 362 |
| JUDGMENT APPEALED FROM: | [2015] VSC 379 (T Forrest J) |
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ADMINISTRATIVE LAW – Application for leave to appeal – Judicial review of decision of Police Registration and Services Board – Board required to have regard to the public interest – Whether Board failed to take public interest into account – No obligation to provide reasons in statute – Statement made as to basis for determination – Examination of transcript and determination together – Whether inference that public interest not taken into account should be drawn – Application for leave granted – Appeal dismissed – Police Regulation Act 1958 ss 86AM, 86AN.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr S P Donaghue QC with Mr R Knowles | Victorian Government Solicitor |
| For the First Respondent | Mr E P White | Tony Hargreaves & Partners |
| For the Second Respondent | No appearance |
OSBORN JA:
Introduction
On 2 August 2013, Mr Calum McCann was charged under the Police Regulation Act 1958 (‘the Act’)[1] with being guilty of disgraceful conduct.
[1]This Act was repealed on 1 July 2014 but transitional provisions in the Victoria Police Act 2013 have continued its effect with respect to the disciplinary provisions with which this proceeding is concerned — Victoria Police Act 2013 s 287. See also sch 6 of that Act and item 33 of that Schedule.
Mr McCann was a Sergeant at the Sunshine Police Station and was alleged to have been involved in the production of stubby holders bearing racist imagery. A delegate of the Chief Commissioner conducted a hearing into the charge, and found it proven.
On 28 February 2014, the delegate determined to dismiss Mr McCann pursuant to s 76(1)(g) of the Act.
Mr McCann then sought a review of this decision before the Police Registration and Services Board (‘the PRS Board’). On 18 November 2014, a division of this Board (‘the Board’) set aside the delegate’s decision and, in substitution, demoted Mr McCann to the rank of Senior Constable incremental level 12 and directed him to undergo human rights training.
The Chief Commissioner then instituted judicial review proceedings in the Supreme Court to set aside the decision of the Board on the ground that the Board had failed to have regard to the public interest in accordance with the terms of a statutory obligation to do so.
T Forrest J dismissed the application for judicial review[2] and the Chief Commissioner now seeks leave to appeal against his Honour’s decision.
[2]Chief Commissioner of Police v McCann [2015] VSC 379 (‘Reasons’).
For the reasons elaborated below, I am not persuaded that his Honour’s decision was wrong, although given the complexity of the analysis, the Commissioner should be granted leave to appeal. Like his Honour, I am of the view that the evidence does not demonstrate the Board failed to have regard to the relevant statutory consideration.
Background facts
Mr McCann was a Sergeant at the Sunshine Police Station and the inaugural president of the Sunshine Police Station Social Club Committee.
Conduct arising in connection with this role led to him being charged that between 6 March 2012 and 17 July 2012 he was guilty of disgraceful conduct.
The Committee had organised the design, production and sale of stubby holders as a fundraising activity for the Social Club and its members. Stubby holders were produced bearing an image of a fish, known as a ‘mudcat’, and the slogans, ‘Whoever says Sunshine brings happiness has never worked here’ and ‘My date of birth is 01/01/?’.
The delegate found that the term ‘mudcat’ was used by some officers at the Sunshine Police Station to refer derogatorily to a person with African descent. The date ‘01/01/?’ referred to persons who come to this country not knowing their precise date of birth. These findings are not challenged
Section 69 of the Act provided for breaches of discipline. These relevantly included:
(1) A member of the force commits a breach of discipline if he or she —
…
(e)is guilty of disgraceful or improper conduct (whether in his or her official capacity or otherwise) …
Section 70 of the Act provides for the preliminary investigation of breaches of discipline, following which a member of the Force may be charged with a breach of discipline under s 71. Section 73 provides that the Chief Commissioner or an officer authorised by the Chief Commissioner must enquire into and determine a charge. In accordance with these provisions, Mr McCann was charged with a breach of discipline and an enquiry was undertaken by Deputy Commissioner Cartwright as the Chief Commissioner’s delegate.
The charges against Mr McCann were found proven by the delegate on 27 February 2014.
On 28 February 2014, the delegate determined to dismiss Mr McCann from the Victoria Police Force. In his determination, Deputy Commissioner Cartwright referred to the objectives of police discipline and made the following findings concerning the effect of Mr McCann’s conduct upon the reputation and integrity of the 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 relationships with young men from the Horn of Africa.
·It is of course impossible to quantify the impact that [Mr McCann’s] actions have had, but it is fair to say the reputation of Victoria Police has suffered enormous damage. The relationships with people from the Horn of Africa and with members of the Brimbank community have suffered enormous damage. I note in the Statement provided by Inspector Grainger, that the enormous effort he has put in to community relations has been directly questioned.
·[Mr McCann is] clearly seen as a leader inside and outside the organisation, behaviour of this sort will cause others to question their judgement, and their confidence in other Victorian Police, and our commitments to the community.
·[Mr McCann] directly influenced other members who are junior to [him], in the production of a racist message, [Mr McCann has] contributed to the damage of their reputation, and the reputation of all members at Sunshine.
Section 86AH of the Act, contained within pt IVAA, provides that a member may apply to the PRS Board for a review of a decision by the Chief Commissioner (or his delegate) to dismiss. Mr McCann sought such a review. The application for review was heard by members of the Review Division of the PRS Board.[3]
[3]Sections 87, 87A and 87G of the Act.
The Board’s jurisdiction
Section 86AM is the source of the controversy in the current proceeding. It provides:
(1) In a review, the PRS Board must have regard to —
(a) the public interest; and
(b) the interests of the applicant for review.
(2)Subsection (1) does not limit the matters to which the PRS Board is otherwise required or permitted to have regard in a review.
(3) In this section—
public interest includes the interest of maintaining the integrity of, and community confidence in, the force.
Section 86AM(3) reflects aspects of the concept of public interest articulated by Brennan J in Police Service Board v Morris:[4]
The Victoria Police, like other Police Forces in Australia, is a force governed by legislation which Crockett J in the Full Court appropriately described in these terms:
The legislation is designed to regulate and control the activities of what is a disciplined force in such a way as to achieve an effective and efficient organisation in which the members are to perform their duties in conformity with a code so as to afford protection to the community and allow the disciplining of members who breach that code.
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, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means — the primary and usual means — of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.
[4](1985) 156 CLR 397, 411–12.
Section 86AN provides that:
(a) on 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;[5] and
[5]Section 86AN(2).
(b) if the PRS Board is satisfied that the decision is harsh, unjust or unreasonable, the PRS Board may set aside the 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.
The PRS Board is bound by the rules of natural justice[6] and all reviews must be conducted with as little formality and technicality and as much speed as practically permitted by the constraints of the ‘requirements of [the] Act and the proper consideration of the subject matter.’[7] The PRS Board is not bound by the rules of evidence and may inform itself on any matter as it sees fit.[8]
[6]Section 86AL.
[7]Section 86AR(1).
[8]Section 86AQ.
The PRS Board is not required by the Act to provide reasons for its decisions. If so requested, the PRS Board would be obliged under s 8 of the Administrative Law Act 1978 to provide reasons but it was not so requested in this case.
The hearing before the Board
Inspector Ryan, who represented the Chief Commissioner before the Board, relied in part on written submissions which referred in detail to the findings of Deputy Commissioner Cartwright and then addressed the statutory framework governing the Board’s jurisdiction:
The Police Regulation Act 1958 (Vic) provides two mandatory considerations for the Board on review:
a.The public interest (including the interest of maintaining the integrity of, and community confidence in, the force); and
b. The interests of the applicant for review.
This requirement is couched in fundamentally, similar terms to s 175(4) of the Police Act 1990 (NSW), which has been held to involve a ‘balancing exercise’.
The interests of the Applicant are set out in the Police Association’s written submissions. However, these considerations must be balanced against the public interest. In his decision, Deputy Commissioner Cartwright [said]:
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 relationships with young men from the horn ... The relationships with people from the horn of Africa and with members of the Brimbank community.
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 to produce a stubby holder with a racist message and then selling it after his Inspector told him he thought it was racist and to get rid of them and then seeking to defend it with an implausible version of events and standing by this version during the hearing, far outweighs the detrimental impact .that the sanction of dismissal will personally entail for the Applicant.[9]
[9]Citations omitted.
The written submission went on to deal with aspects of the facts which the applicant had put in issue and the question of parity insofar as it was raised by penalties imposed on other officers involved in the same incident as the applicant. The written submission concluded:
The Applicant has committed a serious breach of discipline. 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, unjust nor unreasonable, and should be affirmed in accordance with s 86AN(2) of the Police Regulation Act 1958.
Mr McCann’s advocate also provided written submissions to the Board which took issue with aspects of the Deputy Commissioner Cartwright’s findings on the facts and elaborated in detail the argument concerning parity from Mr McCann’s point of view. It was submitted that far less harsh penalties had been imposed by then Deputy Commissioner Ashton (the current Chief Commissioner) on other officers involved in breaches of discipline arising from the same incident. An element of the penalty imposed by Deputy Commissioner Ashton was a requirement for the officers involved to undertake training and education with respect to issues of racism. Deputy Commissioner Ashton’s determination thus addressed the public interest raised by the racist nature of the disciplinary offences by way of the penalty he imposed.
In the course of the hearing the President of the Board had the following exchange with Inspector Ryan:
… this is the dilemma: he’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.
In turn, Mr McCann’s advocate submitted that the public interest issues raised by the racist nature of the disciplinary offences were best addressed by imposing a similar penalty to that imposed by Deputy Commissioner Ashton upon the other officers involved in the stubby holder incident.
In the course of the hearing the President of the Board responded to the oral elaboration of this submission as follows:
It’s a dilemma for this Board because we’re very sensitive to the Chief Commissioner’s concern about racism. He’s made the position very clear. The problem with racism is, as I see it, to try and find what the ultimate penalty is for it. Is it a hanging offence? In some circumstances where it’s blatant and completely and utterly offensive, very, very serious sanctions are necessarily imposed. But we see various examples within 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.
In this case, we have no hesitation in concluding that underlying this was a form of racism. It was sort of in-house — we accept that it was an in-house thing. Every one of the policemen that were confronted said, ‘Whilst it was spoken about within the police station, it would never have found its way outside.’ That’s not really an excuse, but we view this as a serious issue. 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 if, in circumstances where ·the relatively minor penalties imposed on others that we could see have some equal responsibility for the distribution of the stubby holder, there would be some, I think, perceived injustice if that occurred.
As Mr Ryan points out, there are features of the applicant’s behaviour which does distinguish it to some extent. But I think the gravamen of the conduct here was the production of this stubby holder. What occurred afterwards in the case of the applicant in not complying with Inspector Grainger’s direction does distinguish him in some fashion from the conduct of the others, but I think it’s fair to say the board’s view, having considered all this, and being appraised of your submissions and Mr Ryan’s submission, it felt that dismissal in this case was too harsh a penalty. But he has to be punished for what he did and it’s the Board’s concern to mete out an appropriate punishment to reflect the fact that he was a participant in a racially motivated enterprise.[10]
[10]Emphasis added.
The Board’s determination
The Board delivered a written determination which outlined the basis of its decision. The statements within it form part of the record of the decision for the purposes of an application for relief in the nature of certiorari.[11]
[11]Administrative Law Act 1958 s 10.
In its determination the Board first set out the nature of the application before it. It then recorded the material with which it had been supplied, including the written submissions of Inspector Ryan to which I have referred above.
The determination then summarised the history of Mr McCann’s career in the Victoria Police. It detailed the evidence relating to the facts forming the basis of the disciplinary charge. It stated the Board’s conclusion that it was clearly open for Deputy Commissioner Cartwright to make certain of the findings he did.
Having considered the various statements included in the prosecution brief and the aforesaid emails, the Board concludes that it was clearly open for Deputy Commissioner CARTWRIGHT to find that the Applicant used the term mudcat and was aware that it was a derogatory term to describe people of African descent notwithstanding the Applicant’s denials.
It is also abundantly clear that the members of the Social Club Committee were aware of the derogatory connotation attached to the term mudcat and as a Committee they agreed with the ultimate design.
Deputy Commissioner CARTWRIGHT in delivering his sanction made the following remarks (at page 4) ‘While you were not solely responsible for the production of the stubby holder you were instrumental in it. You were the President of the Social Club, a formal and informal leader and clearly influential in the choice of the design’ and later he said ‘You directly influenced other members who were junior to you in the production of the racist message’.
These remarks are to be seen in the light of the fact that there is clear evidence that the decision to produce the stubby holders was made after the matter had been discussed and agreed upon by all members of the Committee, which comprised 5 Sergeants and 5 Senior Constables.
The Board went on to make a further finding as to the collective responsibility for the production of the stubby holders.
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 in the form of the emails that passed between members of the Social Club Committee and the statements made by several members of the Committee that the decision to produce the stubby holders was collective. Deputy Commissioner CARTWRIGHT also stated (p4 4th day of transcript) ‘You also intended to and did develop an alternative innocent explanation to provide superiors.’ At least 4 members of the Committee said the explanation that the Image represented shooting fish in a barrel was a rationale for the design.
The determination then stated:
These facts point to the conclusion that the sanction of dismissal imposed on the Applicant would appear to be unduly harsh when compared with the penalties that were imposed on other members of the Social Committee.
The Board recorded the submissions that had been made by Inspector Ryan to it with respect to the parity issue. It then said:
The Board accepts that by appearing to ignore the direction given by Inspector GRAINGER to destroy the stubby holders, in that respect the Applicant’s case can be distinguished from the other Committee members, but the gravamen of the prosecution’s allegations is the production of the offending stubby holder and the decision to produce them. That was a decision in which all members of the Committee agreed.
The Board then analysed the consequences of the parity issue:
It is unfortunate that the substantially identical issue was tried by 2 different hearing officers and produced what the Board considered were inconsistent results. This is a situation that should have been avoided. In this case, on the issue of the production of the stubby holders, it raises a genuine parity issue.
Penalties imposed by Deputy Commissioner ASHTON in the cases of Sergeants DREAVER, PENGELLY and JARSKI were no harsher than transfers and ineligibility for promotion or transfer for 12 months. Other Committee members received either reprimands or admonishments.
The Board considers that having regard to their complicity in the mudcat design that 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.
The Board agrees with Deputy Commissioner CARTWRIGHT that the Applicant’s explanation for his failure to comply with Inspector GRAINGER’s direction to destroy the stubby holders is implausible and that the desire to recoup the Committee’s costs of producing the stubby holders is no excuse for ignoring the direction.
Inspector RYAN strenuously maintained the position that the overall conduct of the Applicant distinguished him from other Committee members and this conclusion justified the decision to dismiss him.
By way of a response, Mr GUNDY stressed the aforesaid position on parity and further referred the Board to the overwhelming expressions of support for the Applicant contained within the referee statements that he tendered together with the several certificates of commendations that the Applicant had received during his 18 years in the Police Force. This material is not decisive, but the Board attaches some weight to it.
The Board, upon consideration of the extensive material, witness statements, emails and the 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 then considered what penalty should be imposed in substitution for that which had been imposed by Deputy Commissioner Cartwright:
Nevertheless the Applicant’s conduct was worthy of a significant sanction and the Board has decided that in lieu of the sanction of dismissal that the Applicant be reduced in rank to that of Senior Constable incremental level 12.
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 Victorian Equal Opportunity and Human Rights Commission within 12 months.
In stating its determination, the Board did not in terms refer to the provisions of s 86AM or to the necessity for it to have regard to the public interest (including in particular the interest of maintaining the integrity of and community confidence in the police force) or to have regard to the interests of the applicant for review.
On the other hand, the Board did expressly acknowledge receipt of the submissions of Inspector Ryan. It also canvassed the consequences of the racist connotations of the stubby holders with the parties’ representatives during the course of the hearing, and it expressly referred to the public interest relating to this issue as bearing on its evaluation of the appropriate penalty.
The trial judge’s decision
The trial judge noted that the application for judicial review was not one with respect to the adequacy of the Board’s reasons. It was necessary for the applicant to demonstrate that the Board had not engaged actively with the public interest as it was required to do by s 86AM.
The single express reference to the public interest in the Board’s determination was not determinative of the issue before the Court. It was necessary to consider not only the Board’s written determination but also the evidence as to the process adopted before it.
Ultimately, his Honour was not satisfied the Board failed to take the public interest into account in accordance with s 86AM having regard to the following considerations:
·The Board was chaired by a very experienced former County Court judge.[12]
·Inspector Ryan’s submissions analysed the public interest in clear terms and the Board acknowledged receipt of these submissions.[13]
·The public interest was at the core of Deputy Commissioner Cartwright’s decision and the Board made numerous references to having considered his decision including the aspects of it bearing on the relevant factors of the public interest.[14]
·The parity issue elaborated by the Board itself raises issues of the public interest.[15]
·The Board specifically recognised that the racist conduct under consideration raised a serious issue. In the light of this issue, it regarded as lenient the sanctions imposed by then Deputy Commissioner Ashton upon other officers involved in the incident.[16]
·The seriousness of the offence was inherently tied to the deleterious effect on community confidence caused by perceptions of racism in the force.[17]
·The Act required a simple balancing process of reasoning.[18]
·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.[19]
·The specific reference to the public interest in the Board’s determination must be viewed in this context and evidences a balancing process of reasoning.[20]
·The purpose of the sanction imposed on Mr McCann was transparently to both dissuade him from engaging in this kind of disgraceful conduct again and to demonstrate to the community that action is being taken to improve awareness of racism within Victoria Police.[21]
[12]Reasons [31].
[13]Ibid [31].
[14]Ibid [32].
[15]Ibid [34].
[16]Ibid [35].
[17]Ibid [35].
[18]Ibid [36].
[19]Ibid [36].
[20]Ibid [37].
[21]Ibid [37].
The submissions of the parties on appeal
The applicant submits that if the Board failed to take into account the interest of maintaining the integrity of and community confidence in the police force, then the Board failed to make its decision in accordance with s 86AM. It failed to have regard to a matter which the statute required it to take into account. Such failure constituted a jurisdictional error.[22] The s 86AM(3) factors are to be given weight as fundamental considerations involved in and elements of the required decision-making process.[23]
[22]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351 [82]; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 571–3 [66]–[68], 573–4 [71]–[73]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–41; Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135 [103]–[106].
[23]R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, 324, 329, 334; R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, 333; Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265, 271–2 [24]–[26]; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 370–3 [57]–[67]; National Retail Association v Fair Work Commission [2014] FCAFC 118 [56].
The applicant further submits that, in order to have regard to the public interest, the Board must engage in an active intellectual process directed to relevant considerations affecting the maintenance of the integrity of and community confidence in the police force.[24]
[24]Tickner v Chapman (1995) 57 FCR 451, 462; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 270 [57]–[58], 271 [63]; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 280 ALR 91, 112–3 [44]–[47]; Vanstone v Clark (2005) 147 FCR 299, 304 [3]–[5], 358–60 [232]–[246].
The consideration of the public interest is relevant both when determining whether the original decision was harsh, unjust or unreasonable and, if so satisfied, when determining any appropriate sanction.
These principles were accepted by the trial judge[25] and are not in issue.
[25]Reasons [13].
The applicant submits that the failure of the Board to refer in its determination to the substantive content of s 86AM in the circumstances of the case leads to the necessary inference that the Board did not have regard to relevant considerations of the public interest. In particular, the applicant submits that the public interest is one of two fundamental considerations identified by s 86AM and that this makes the failure to adequately refer to it very telling.[26]
[26]Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271 [61]–[62]; R v Hunt; Ex parte Sean Investments Pty Ltd (1982) 180 CLR 322, 329.
On the other hand, it is submitted on behalf of Mr McCann that the inference which the applicant invites should not be drawn, having regard to the matters identified by the trial judge. It is emphasised amongst other things that the proper response in the public interest to the racial connotation of the stubby holder was the subject of discussion and debate throughout the hearing. It is submitted the Board was not required to set out specifically the way in which Mr McCann’s behaviour may have affected the public interest as defined in each specific respect. The Board was simply required to take these considerations into account. Further, the fact that explicit reference was made to the public interest at the conclusion of the Board’s reasons enables the inference to be drawn that the public interest more generally was taken into account.
Analysis
Ultimately, the trial judge concluded that the terms of the Board’s determination evidenced a balancing process of reasoning which had, in part, responded to the material aspects of the public interest by reference to the submissions made to it.[27]
[27]Reasons [19]–[20].
I respectfully agree with the trial judge that the detailed terms of the Board’s determination should be regarded as critical. Before turning back to the Board’s determination, the following general contextual matters bear upon its analysis.
(1) The PRS Board is a specialist tribunal. It is not a general administrative review tribunal. As Basten JA stated in Savill v Health Complaints Commission:
Most matters taken into account in judicial or quasi-judicial proceedings, and even in administrative decision-making, are permissible considerations. Some may be elevated to the status of mandatory considerations, so that to ignore them would demonstrate legal error, but one would rarely expect a specialist tribunal, especially when assisted by experienced counsel, to fail to take such matters into account. It would also be rare that such a tribunal, assisted by experienced counsel, would be misled into giving weight to matters which lie so far beyond the purpose of its functions as to be legally irrelevant.[28]
[28][2006] NSWCA 298 [58] (Handley and Tobias JJA agreeing) (emphasis added).
(2) Because the Board was not required to give reasons, this is not a case of the kind referred to by Stephen J, with whom Gibbs, Mason and Aickin JJ agreed, in Kentucky Fried Chicken Pty Ltd v Gantidis:[29]
[29](1979) 140 CLR 675, 682. Applied by Ormiston J in Body Corporate Strata Plan No 4166 & Ors v Stirling Properties Limited (No 2) [1984] VR 903, 914.
Where appellate administrative tribunals are required by statute to include in their decisions a statement of their reasons for arriving at them there will be little difficulty in assigning some significance to silence; it will at the least reveal a failure to comply with the requirements of the statute and may go so far as to impugn the decision itself, particularly where some statement of reasons does appear but omitted from it are considerations relevant to the determination of the matter in issue.
Still less is it a case of the kind exemplified by Minister for Immigration v Yusef[30] where the Refugee Review Tribunal was obliged by s 430(1) of the Migration Act 1958 (Cth) to prepare a written statement that did four things:
[30](2001) 206 CLR 323.
(i) set out the decision of the Tribunal on the review; and
(ii) set out the reasons for the decision; and
(iii) set out the findings on any material questions of fact; and
(iv) refer to the evidence or any other material on which the findings of fact were based.
(3) The applicant had the capacity to require the Board to provide reasons for decision pursuant to s 8 of the Administrative Law Act but did not do so. He is left with partial evidence only as to the basis of the Board’s reasoning.
(4) This does not mean that the Board’s reasons insofar as they appear from its determination may not provide a basis for inference as to the inadequacy of its reasoning process[31] but it does mean that inferences cannot as readily be drawn from failures to explicitly deal with all aspects of the reasons underpinning the decision-making process.
[31]East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, 661–2.
(5) The statutory scheme which the Board was required to apply was very simple. One may compare the provisions of s 86AM with the complexity of the provisions of the Sentencing Act 1991 in respect of relevant considerations.
(6) On one view at least, the provisions of s 86AR(1) favoured a form of determination which went straight to the ultimate merits of the case as the Board saw it. That subsection required the Board to conduct the review with as little formality and technicality and as much speed, as the requirements of the Act and the proper consideration of the subject matter permitted.
(7) Some guidance may be gained from the longstanding test which has been applied in this State to the failure of a magistrate to refer to particular matters in his or her reasons as being indicative of an underlying error of law. The test stated by Sholl J in Harrison v Mansfield[32] was adopted by Adam J in McConkey v McConkey in the following terms:
The true principle must be not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, or if the magistrate’s observations indicate, on a comparison of what he said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw such an inference, and the magistrate will have no cause to complain if it does so.[33]
[32][1953] VLR 399, 404.
[33][1960] VR 295, 300.
In the present case, the critical question is whether the Board’s observations indicate on a comparison of what it said and did not say that the matter in question was not considered as it should have been.
The determination does not purport to deal with the statutory framework at all. It is difficult to escape the impression that the Board took it for granted that those reading the determination (and in particular the parties) were well familiar with that statutory framework.
In these circumstances, it is therefore not surprising that the Board would refrain from referring directly to the terms of the statute, particularly when none of those involved in the hearing had taken any issue regarding the construction of the statute or any particular difficulties of its application to the case before the Board. Had that been the case, one might have expected the Board to refer directly to the statute and communicate what interpretation the Board had made of the provision in issue, but that is not this case.
I am not persuaded that the inference should be drawn that the Board did not have regard to the public interest in the specific sense contemplated by s 86AM(3).
I agree with the trial judge that the express recognition by the Board of the seriousness of the misconduct reflects a consideration of the matters reflecting the public interest. This conclusion is supported by the Board’s statements during the course of the argument at the oral hearing, including the President’s express statement that the Board was very sensitive to the Chief Commissioner’s concerns about racism.
I also agree that, although the express reference to the public interest at the conclusion of the Board’s reasons is not dispositive of the matter, it nevertheless makes plain that the Board did consider the public interest in the course of its reasoning process. It would be odd indeed if it regarded this consideration as going only to penalty.
I am not, however, persuaded that the proposition that the principle of parity raises questions of the public interest itself demonstrates that because the Board had regard to parity it follows that the Board had regard to the public interest in the specific senses contemplated by s 86AM(3). In Green v The Queen, French CJ, Crennan and Kiefel JJ said:[34]
‘Equal justice’ embodies the norm expressed in the term ‘equality before the law’. It is an aspect of the rule of law. It was characterised by Kelsen as ‘the principle of legality, of lawfulness, which is immanent in every legal order’. It has been called ‘the starting point of all other liberties’. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. (Emphasis in original.)
Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
[34](2011) 244 CLR 462, 472–3 [28] (citations omitted).
It follows that the parity principle does raise significant issues of the public interest. Nevertheless, it does not follow from this that consideration of questions of parity in a case such as the present necessarily involves consideration of the specific public interest of maintaining the integrity of and community confidence in the force. In the present case, awareness of those factors is, however, reflected in the Board’s acknowledgment of the underlying seriousness of the misconduct. It was the effect of that misconduct upon the maintenance of the integrity of the force and community confidence in the force that made it so serious.
My overall conclusions in respect of the difficulty in drawing the necessary inferences from the Board’s determination are fortified by a number of both general and case specific contextual factors:
(a) the simplicity of the statutory scheme which the Board was required to apply;
(b) the inherent improbability that the Board, as a specialist tribunal, was not aware of this scheme;
(c) the express agitation before the Board in detail of the specific aspects of the public interest identified in s 86AM(3);
(d) the Board’s recognition of public interest considerations during the course of discussion in the course of the hearing;
(e) the general character and obvious relevance of such factors;
(f) the inherent improbability that the Board did not have regard to such factors;
(g) the fact that the determination was not formulated or delivered pursuant to a statutory obligation to give reasons; and
(h) the fact that there was a statutory warrant for the tribunal to proceed expeditiously, informally and without unnecessary technicality.
Ultimately, it is not sufficient for the applicant to demonstrate the possibility of error on the part of the Board. In order to establish the case for judicial review, an applicant must positively satisfy the Court that the Board’s decision was in fact vitiated by a failure to have regard to a relevant consideration. In Kentucky Fried Chicken Pty Ltd v Gantidis, Barwick CJ said:[35]
Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some circumstances it may be indicative. But, in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal.
[35]Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 679–80. See also SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109, [25], cited in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 273–4 [71].
That case was concerned with facts analogous to the present one in the sense that the Tribunal there under consideration was required to provide reasons for the decision only if requested to do so. Its determination was held to state conclusions only and not to evidence its full reasons.[36]
[36]Ibid 680 (Barwick CJ), 681 (Gibbs J), 685 (Stephen J), 687 (Mason J), 687 (Aickin J).
Because the Board’s determination did not make clear that it did have regard to the relevant considerations (in the way that reasons should) the applicant’s case is sufficiently arguable to warrant the grant of leave to appeal. On analysis, however, the evidence does not positively demonstrate that the Board failed to have regard to the public interest considerations in issue.
I would grant leave to appeal and dismiss the appeal.
McLEISH JA:
I agree, for the reasons given by Osborn JA, that leave to appeal should be granted but that the appeal should be dismissed.
GINNANE AJA:
This application is about whether the Police Registration and Services Board performed the statutory function that Parliament requires of it under s 86AM of the Police Regulation Act 1958 and the correctness of the trial judge’s
conclusion that the Chief Commissioner had not established that the Board had failed to take into account the ‘public interest’.
This application is not about the decision that should have been made in respect of Mr McCann because of his involvement in the production of the racist stubby holders as part of the Sunshine Police Station Social Club Committee.
The reasons of the Board
The Board stated that:
Deputy Commissioner Cartwright[37] 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 in the form of the emails that passed between members of the Social Club Committee and the statements made by several members of the Committee that the decision to produce the stubby holders was collective.
…
These facts point to the conclusion that the sanction of dismissal imposed on the Applicant would appear to be unduly harsh when compared with the penalties that were imposed on other members of the Social Committee.
…
Inspector Ryan[38] submitted that the other Committee members were in a different position to the Applicant. The Board accepts that by appearing to ignore the direction given by Inspector Grainger to destroy the stubby holders, in that respect the Applicant’s case can be distinguished from the other Committee members, but the gravamen of the prosecution’s allegations is the production of the offending stubby holder and the decision to produce them. That was the decision in which all members of the Committee agreed.
It is unfortunate that the substantially identical issue was tried by 2 different hearing officers and produced what the Board considered were inconsistent results. This is a situation which should have been avoided. In this case, on the issue of the production of the stubby holders, it raises a genuine parity issue.
…
The Board considers that having regard to their complicity in the mudcat design that 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.
…
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 Victorian Equal Opportunity and Human Rights Commission within 12 months.
[37]The delegate of the Chief Commissioner.
[38]The advocate for the applicant.
The trial judge’s reasons
His Honour was not satisfied that the Chief Commissioner had established that the Board failed to take the public interest into account in its review of the sanction imposed on Mr McCann. His Honour noted that the Board’s reasons made only a single explicit reference to the public interest, when it directed that Mr McCann attend human rights training. But, his Honour considered that that reference was not determinative, because a consideration of all the material that was before the Board emphasised the public interest as a mandatory consideration.
His Honour noted that the Board considered there was a ‘genuine parity issue’ in the differential severity of sanctions imposed on the officers involved in the production of the stubby holders. That issue was central to the Board’s determination that the decision to dismiss Mr McCann was ‘harsh, unjust or unreasonable’. The Board referred to the sanctions imposed on other sergeants by the Deputy Commissioner, who is now the Chief Commissioner. The parity issue was an aspect of the public interest.
His Honour noted that the Board considered Mr McCann’s conduct to be serious and stated that the seriousness of the offence was inherently tied to the deleterious effect on community confidence caused by perceptions of racism in the force.
Consideration of the application
The parties did not seek a statement of the Board’s reasons as they might have under s 8 of the Administrative Law Act 1978. There is no requirement at common law that an administrative decision maker give reasons for a decision.[39] However, the following passage provides guidance as to the significance of the statement made by the PRS Board:[40]
[R]easons are no less important where an authority, though not under a statutory duty to provide reasons, provides reasons to explain the discretionary exercise of a statutory power. Where the authority gives reasons for its decision, the court may act upon them if they demonstrate an erroneous approach to an exercise of power. But, like reasons given pursuant to a statutory obligation, reasons voluntarily provided should not be overzealously scrutinised.
[39]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
[40]East Melbourne Group Inc v Minister for Planning (2009) 23 VR 605, 661–2 [228] (Ashley and Redlich JJA) (citations omitted).
The PRS Board was required to take into account, and bring its mind to bear on the relevant provisions of the Act, the facts before it and the submissions made to it.[41] That is all that was required, no matter how the duty is described.[42] A mere recitation of submissions does not reveal that particular matters included in the submissions were had regard to.
[41]Tickner v Chapman (1995) 57 FCR 451, 495 (Kiefel J).
[42]That is all that phrases like ‘active intellectual process’ require.
Section 86AM(1) states that, in a review, the PRS Board must have regard to the public interest, which is defined by s 86AM(3), and to the interests of the applicant.
The PRS Board did not have to base its decision solely on the public interest and the interests of the applicant for review. The stipulation of the public interest provided in s 86AM(3) does ‘not limit the matters to which the PRS Board [was] otherwise required or permitted to have regard in a review’.[43] The definition of ‘public interest’ contained in s 86AM(3) is not an exhaustive definition. The ‘public interest’ is an expansive idea that it would be unwise to attempt to define precisely.[44] Section 86AM does not expressly require that the PRS Board have regard to the elements included in the definition of ‘public interest’. However, the parties proceeded, correctly in my opinion, on the assumption that the Board needed to have regard to the interests of maintaining the integrity of, and community confidence in, the force as well as the interests of Mr McCann as the applicant for review. The proper construction of s 86AM identified those considerations as matters to which the Board must have regard.[45]
[43]Section 86AM(2).
[44]Cf O’Sullivan v Farrer (1989) 168 CLR 210, 216.
[45]Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24, 39–40 (Mason J).
The Board placed particular reliance on issues of parity between the penalties imposed on Mr McCann and those imposed on other sergeants who were involved in the production of the stubby holders. Those sergeants had not been dismissed and received less severe penalties. Their disciplinary hearings had been conducted by the Chief Commissioner, who is the applicant in this proceeding, when he was Deputy Commissioner. Issues of parity can affect community confidence in the justice system, or in this case, in the administration of the force. The Board accepted the seriousness of racist behaviour among police officers but also of the importance of parity in imposing penalties on police officers. The need for consistency in punishment is of general importance, but especially so within institutions like the police force that play a significant role in the justice system. As Mason J stated in Lowe v The Queen:[46]
Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.
[46](1984) 154 CLR 606, 610-11. A dissenting judgment, but applied in this Court, eg in Taleb v R (2014) 42 VR 666, 674–5 [42] (Neave and Weinberg JJA) quoting Scerri v The Queen [2010] VSCA 287 [45]–[47] (Maxwell P and Buchanan JA); see also Green v The Queen (2011) 244 CLR 462, 473 (French CJ, Crennan and Kiefel JJ).
Although Mason J’s statement was made in respect of sentencing principles, it explains why parity is a matter affecting the public interest. The Board described the production of the stubby holders as having ‘racial connotations’ and specifically referred to the public interest in determining the penalty that was to be imposed on Mr McCann.
The Board treated as significant to its decision the damage to community confidence in the Victoria Police caused by the publicity given to the making of the stubby holders. That significant damage influenced the Board’s decision as to the appropriate action to take against Mr McCann. In determining which action to take, the issue of parity, or fairness in light of the penalties imposed on the other sergeants, was a major consideration. This was so, not because the Board was sentencing Mr McCann for a criminal offence, but because it had to have regard to the public interest and his interests. Disparity in penalties imposed for similar conduct can erode community confidence in any public institution. It may also create a grievance in the person who receives the unequal penalty.
The President of the Board stated during the hearing, after referring to the parties’ submissions, that ‘dismissal in this case was too harsh a penalty’ and added:
But he has to be punished for what he did and it’s the board’s concern to mete out an appropriate punishment to reflect the fact that he was a participant in a racially motivated enterprise.
The parity issue was relevant to both matters that s 86AM(1) required the Board to have regard to: the public interest and the interests of the applicant for review.
Conclusion
The learned trial judge was correct to dismiss the judicial review proceeding. The Chief Commissioner had not established that the Board failed to have regard to the public interest.
I would grant leave to appeal and dismiss the appeal.
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