Chief Commissioner of Police v Police Appeals Board
[2012] VSC 105
•23 March 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 3601 of 2011
| CHIEF COMMISSIONER OF POLICE | Plaintiff |
| V | |
| POLICE APPEALS BOARD GLENN JOHNSTON DARREN BALL | First Defendant Second Defendant Third Defendant |
No. 3864 of 2011
| CHIEF COMMISSIONER OF POLICE | Plaintiff |
| V | |
| POLICE APPEALS BOARD SHANE LAMONT | First Defendant Second Defendant |
---
JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2012 | |
DATE OF JUDGMENT: | 23 March 2012 | |
CASE MAY BE CITED AS: | Chief Commissioner of Police v Police Appeals Board & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 105 | |
---
ADMINISTRATIVE LAW – Application for certiorari and mandamus – Decisions of Police Appeals Board – Distribution of emails by police members contrary to Instruction of Chief Commissioner – Breach of discipline – Whether Board, in assessing breaches, adopted impermissible hierarchy of seriousness – Whether error of law by Board on face of record.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff (in each proceeding) | Ms D. Mortimer SC with Ms K. Walker | Victorian Government Solicitor’s Office |
| For the first Defendant in each proceeding | Dr T McEvoy | Carroll & Dillon |
| For the second and third Defendants in Proceeding No 3601 and for the second Defendant in Proceeding No 3864 | Mr E. White | Tony Hargreaves & Partners |
HIS HONOUR:
These two proceedings, which have been heard together, were brought by originating motion by the plaintiff, the Chief Commissioner of Police, for orders, in the nature of certiorari and mandamus, in respect of decisions by the first defendant, the Police Appeals Board (“the Appeals Board”). By those decisions, the Appeals Board upheld applications, by the three police members, for review of decisions of a delegate of the plaintiff (“the Chief Commissioner”) to dismiss them from the Victoria Police, pursuant to s 76(1)(g) of the Police Regulation Act 1958 (“the Act”).
The three police officers concerned are Senior Constable Johnston, Sergeant Ball (the second and third defendants in proceedings 3601 of 2011), and Senior Constable Lamont (the second defendant in proceedings 3864 of 2011). Each of the three officers had been charged with failing to comply with an instruction of the Chief Commissioner, pursuant to s 69(1)(b) of the Act, namely, an instruction contained in the Victoria Police Manual (“VPM”) concerning the use of the Victoria Police email system (VPM Instruction 207-4-6.1.1). That instruction provides that users of the police email system must not generate, forward or send messages, which contain “inappropriate material”, or links to inappropriate material. In breach of that instruction, each of the three officers had forwarded inappropriate emails using the Victoria Police email system.
After the three officers were charged, they each pleaded guilty to the charge. A discipline hearing, in respect of each officer, was conducted by a delegate of the Chief Commissioner. The delegate found that each of the three officers had failed to comply with VPM Instruction 207-4-6.1.1. He decided, in each case, to dismiss the officer, pursuant to s 76(1)(g) of the Act.
The officers appealed, against those decisions, to the Appeals Board pursuant to s 91F of the Act. In each case, the Appeals Board upheld the finding, by the delegate, of a failure by the officer to comply with the instruction of the Chief Commissioner, but in each case, the Appeals Board reduced the penalty imposed on each officer.
It is in respect of those decisions of the Appeals Board that the plaintiff seeks relief in this proceeding. It is important to note, at the outset, the nature of the application, which I must determine. The proceedings, brought by the plaintiff, are not appeals against the decision of the Appeals Board. Nor are they, in any sense, a review of the merits of the decisions, made by the Appeals Board. This Court does not have the power to hear an appeal against, or to review the merits of, a decision of the Appeals Board. Rather, as I have already stated, the proceedings are brought by originating motion, pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), for relief, in the nature of certiorari, to quash the decision of the Appeals Board, and by way of mandamus, the require the Board, in each case, to exercise its jurisdiction according to law. The primary relief is sought by way of certiorari. In order to be entitled to that relief, the plaintiff must establish jurisdictional error, or error of law on the face of the record, by the Appeals Board.[1]
[1]Craig v State of South Australia (1995) 184 CLR 163, 175-6.
The relevant legislation
The Act makes general provision for the regulation of Victoria Police. Section 17 provides that the Chief Commissioner may, from time to time, issue, amend and revoke standing orders for the general administration of the force, and “instructions for the effective and efficient conduct of the force’s operations”. Part 4 of the Act is concerned with employment, disciplinary and other matters. Division 2 of Part 4 is entitled “Discipline”. Section 69(1) prescribes the circumstances, in which a member of the force commits a breach of discipline. So far as is relevant for this case, s 69(1)(b) provides:
“(1)A member of the force commits a breach of discipline if he or she –
…
(b)fails to comply with a standing order or instruction of the Chief Commissioner;”
The Victoria Police Manual contains a set of instructions, issued by the Chief Commissioner under s 17 of the Act. In this case, as I have stated, the three members, who are the subject of these proceedings, have each been found to have sent inappropriate emails using the Victoria Police email system, contrary to VPM Instruction 207-4-6.1.1. That instruction (to which I shall refer as “the Instruction”) provides:
“Users of the email system must:
…
•not generate, forward or send messages that contain inappropriate material, or links to inappropriate material and/or websites, as per VPM 207-5. Inappropriate material includes but is not limited to:
-obscene, pornographic, erotic, sexually explicit, violent, inflammatory, offensive, insulting, threatening or harassing language, images or sounds
-any discriminatory or vilifying language, images or sounds relating to an individual’s or group’s personal characteristics, whether actual or presumed; or, to protected attributes under equal opportunity legislation, e.g.; sex, race, impairment, physical features, sexual orientation, religious or political beliefs, national origin or age
-any other material which a reasonable person would find offensive.”
Section 70(1) provides that if the Chief Commissioner reasonably believes that a member of the force may have committed a breach of discipline, the Chief Commissioner may begin an investigation of the matter. Section 71(1) provides that if, after conducting such an investigation, the Chief Commissioner, or an officer authorised by the Chief Commissioner, reasonably believes that a member of the force has committed a breach of discipline, the Chief Commissioner (or an authorised officer) may charge the member with the commission of that breach of discipline. Section 72(1)(b) requires that the charge contain particulars of the alleged breach of discipline. Section 73 provides that the Chief Commissioner, or an authorised officer, must inquire into and determine a charge, and s 75 specifies the procedures to be followed in respect of that inquiry. Section 76 prescribes the sanctions, which may be imposed where a charge has been proved. Those sanctions are: reprimanding the member; adjourning the hearing of the inquiry on condition that the member be of good behaviour for a period not exceeding 12 months; imposing a fine; imposing a period (not exceeding two years) during which the member will not be liable for promotion or transfer to other duties; reduction of rank or seniority of the member; reduction of remuneration of the member; transfer of the member to other duties; and dismissal.
Division 2 of Part 5 of the Act provides for appeals to the Appeals Board. Section 91F(1) provides that a member may apply to the Appeals Board, for a review of a decision by the Chief Commissioner, or a person authorised by the Commissioner, to (inter alia) terminate the member’s appointment.
Section 91G(1) provides that, on a review, the Appeals Board may affirm the decision under review, set it aside and substitute for it another decision, which the person who made the decision could have made, or set aside the decision under review, and refer the matter for determination by the Chief Commissioner, in accordance with directions or recommendations of the Appeals Board.
The Decisions of the Appeals Board
The Appeals Board conducted the hearing of the charge against Senior Constable Johnston on 2 March 2011, and delivered its decision on 13 May 2011. The Board heard the charge against Sergeant Ball on 23 March 2011, and delivered its decision on 13 May 2011. It heard the charge against Senior Constable Lamont on 18 May 2011, and delivered its decision on 25 May 2011. In each appeal, the Board was constituted by Ms B. Masterson (Chairperson), and by Mr R. Beazley and Ms R. Hunt (Deputy Chairpersons).
(a) The Appeal Board decision relating to Senior Constable Johnston
Senior Constable Johnston was found to have forwarded eleven inappropriate emails, using the police email system, over the period 1 January 2007 to 21 July 2008. They depicted:
· Death
· Some nudity and sexual connotations
· Bestiality
· Racial connotations
· Other generally offensive material
In its decision, the Appeals Board gave a brief description of each of the subject emails. It noted that the applicant had forwarded nine of the emails to internal email account holders, and two to his current partner, who was an external recipient. The applicant did not introduce any of the emails into the Victoria Police email system. Having described the content of the emails, the Board stated:
“Having closely examined the nature of the material and the extent to which the applicant distributed the emails, the Board accepts that the circulation was not extensive and the content while sometimes offensive or discriminatory was of a more serious nature in only one case.”
In the next passage in the decision, the Board summarised the proceedings on the review hearing. It referred to responses by Senior Constable Johnston to questions put to him by Board members. The Board then stated:
“It was evident from the Applicant’s interview with ESD investigators that he regarded inappropriate emails as being those of a pornographic nature and that he had not adequately acquainted himself with current Victoria Police policy in this area. This coupled with what appears to be an uncharacteristic lapse of judgment on his part has contributed to his actions in sending the emails subject of the present matter.”
Later in its decision, the Board stated:
“The nature of the emails in question, with the exception of one is not in the Board’s view at the high end of seriousness. That is not to say that they are not offensive, but would likely be freely circulated in the broader email domain. That police officers also share that broader domain is noted and perhaps the issue is more one of understanding and knowledge of what is appropriate in the work domain as distinct from the private.
…The applicant both in his interview with ESD investigators and in response to questions from the Board admitted his view of what was inappropriate material that was pornographic. To not recognise that material with racial or other discriminatory overtones was inappropriate demonstrates poor judgment on his part.”
Under the heading “The nature of the email material, in particular the degree of offensiveness”, the Board stated:
“As discussed above the Board considers one of the subject emails to be of a serious nature in that it depicts bestiality. Of the remaining emails all are considered offensive to varying degrees while some are vilifying in terms of race and impairment. Others could be regarded as approaching being obscene.”
The Board then concluded:
“Having considered all of the above material it is the Board’s finding that the sanction imposed by the Disciplinary Hearing Officer was excessive.
While that is the case the Board does consider that at least one of the subject emails was extremely offensive in that it depicted bestiality while others were either racially discriminatory or otherwise offensive.
The Board has however placed weight on the unblemished and exemplary service history of the applicant. The probity report provided by ESD discloses no previous complaint history which is in the Board’s experience notable for a member with 23 years service.
In addition, the member’s presentation at the hearing demonstrated genuine remorse and was delivered in a measured and highly professional manner.”
The Board concluded that the determination of the hearing officer, to dismiss Senior Constable Johnston, should be set aside, and, in its place, the applicant be fined $3,000, and be reduced in remuneration by two increments within the Leading Senior Constable level, in accordance with Schedule A of the current EBA.
(b) The Appeal Board decision relating to Sergeant Ball
The Appeal Board found that Sergeant Ball had been identified as having forwarded 34 inappropriate emails over the period 13 July 2009 to 29 January 2010. They depicted:
· Death, dying, serious injury and extreme violence
· Nudity and partial nudity
· Material discriminating against race or religion
· Material that would be regarded as generally offensive
The Board noted that 33 of the 34 emails were sent to internal police email accounts, and the remaining email was sent to a contact in another Government department.
The Board examined each of the emails, and gave a brief description of them. Having done so, the Board observed as follows:
“The nature of most of the emails in question is not in the Board’s view at the high end of seriousness. While they are all ‘inappropriate’ and generally offensive none could be categorised as pornographic. Most would likely be freely circulated in the broader email domain. That police officers also share that broader domain is noted and perhaps the issue is more one of understanding and knowledge of what is appropriate in the work domain as distinct from the private.”
The Board then stated:
“… The applicant both in his interview with ESD investigators and in response to questions from the Board admitted that his view of what was inappropriate was material that was pornographic. To not recognise the material with racial or other discriminatory overtones was inappropriate demonstrates poor judgment on his part.”
Under the heading “Nature of the email material including the volume and degree of offensiveness”, the Board observed as follows:
“Of the 33 emails examined by the Board, and listed above, emails 1, 13, 14, 16, 17, 28, 29, 30 were considered to contain material which was at the mid to lower end in terms of offensiveness. The nature of the offence raised from language, vilification, violence and sexual undertones.
While all of the emails were considered ‘inappropriate’ in that they breached the provisions of VPM 207-4 in many cases it was the volume of the emails and not the content which was the more serious consideration.”
The Board further noted that there was no evidence, before the Board, of poor performance by Sergeant Ball since his promotion to sergeant in 2006. The Board also noted that Sergeant Ball had performed periods of upgrading, to acting senior sergeant rank, and that that factor, together with referee material, supported his otherwise satisfactory performance. The probity report, provided by ESD, disclosed a minimal complaint history, with no previous complaints being substantiated, and no previous disciplinary matters. The Board took into account that Sergeant Ball, otherwise, was of good character, and that he had demonstrated genuine remorse. Based on those matters, the Board concluded that the sanction, imposed by the discipline hearing officer, was excessive. It set that determination aside, and in its place, imposed a fine of $4,000 on Sergeant Ball, and directed that he be reduced in remuneration, by three increments within the sergeant level, in accordance with Schedule A of the current EBA.
(c) The Appeal Board decision relating to Senior Constable Lamont
The Appeals Board found that Senior Constable Lamont had been identified as having forwarded 25 inappropriate emails over the period 12 December 2006 to 5 December 2009. The Appeals Board stated that the emails breached Victoria Police policy, in that they comprised videos, images and text; they contained images of death, dying and people being injured; and they included material, which was “considered generally offensive” and “not related to policing”. The Board also considered that the material, collectively, exceeded the minor private use provisions of the Victoria Police IT network.
The Board noted that 12 of the 25 emails were forwarded to multiple internal and external email account holders, and 13 were forwarded only to external email account holders. None of the emails in question were introduced, by Senior Constable Lamont, into the Victoria Police email system.
The Board examined each of the emails and gave a description of them. Having done so, the Board stated:
“The content of the emails was sometimes offensive or discriminatory was of a more serious nature in only three or four cases.”
The Board then summarised the responses made, by Mr Lamont, to questions put to him by Board members. The Board observed that it was evident, from Senior Constable Lamont’s interview with Ethical Standards Department investigators, that he regarded inappropriate emails as being those of a pornographic nature, and that he, thus, had not adequately acquainted himself with current Victoria Police policy in that area. The Board stated:
“This coupled with what appears to be an uncharacteristic lapse of judgment on his part has contributed to his actions in sending the emails subject to the present matter.”
The Board then stated:
“The nature of the emails in question, with the exception of a few is not in the Board’s view at the high end of seriousness. That is not to say that they are not offensive but would likely be freely circulated in the broader email domain. That police officers also share that broader domain is noted and perhaps the issue is more one of understanding and knowledge of what is appropriate in the work domain as distinct from the private.”
The Board again referred to the understanding, of Senior Constable Lamont, that inappropriate material was confined to pornographic material. The Board observed:
“To not recognise that material with racial or other discriminatory overtones was inappropriate demonstrates poor judgment on his part.”
In describing the nature of the emails, and the degree of the offensiveness of the them, the Board stated:
“As discussed above, the Board considers that perhaps three or four of the subject emails to be of a more serious nature in terms of offensiveness. Of the remaining emails all are considered offensive to varying degrees and some are vilifying in terms of race or physical appearance. Others could be described as graphic in terms of violence. Those considered to be graphic however have been distributed largely to other police or external recipients with an interest or experience which may render them less likely to find the material offensive. None of the material was considered to be pornographic albeit graphic in other respects.”
The Board then concluded that, having considered all of the available material, the sanction, imposed by the discipline hearing officer, was excessive. The Board placed weight on the unblemished service history of Senior Constable Lamont, noting that the probity report, provided by ESD, disclosed only one previous unsubstantiated complaint, which was quite notable for a member with 20 years’ service. The Board took into account the genuine interest of Senior Constable Lamont in issues relating to road safety. It noted his preparedness to seek out non-operational duties, to enable him to care for his children, thus demonstrating a high level of responsibility. The Board set aside the determination, of the hearing officer, and, in lieu thereof, ordered that Senior Constable Lamont be fined $2,000, and that he be placed on a good behaviour bond for a period of 12 months.
Grounds of administrative review
In each proceeding, the originating motion, in paragraphs 4 and 5, sets out two grounds of review of the decisions of the Appeals Board, namely:
“4.In setting aside the sanctions imposed by the delegate and imposing lesser sanctions, the Board failed to take into account relevant considerations.
Particulars
In determining the seriousness of the breaches of VPM Instruction 207-4-6.1.1 by (the officers), the Board was required to, but did not, consider the concepts of discrimination, and racial and religious vilification, as those concepts are understood in Victorian law through the provisions of the Equal Opportunity Act 1995 and the Charter of Human Rights and Responsibilities Act 2005.
5.In setting aside the sanctions imposed by the delegate and in imposing lesser sanctions, the Board misunderstood and misapplied VPM Instruction 207-4-6.1.1.
Particulars
In determining the seriousness of the breaches of VPM Instruction 207-4-6.1.1 by (the officers) and the appropriate penalty under s 76(1) of the Police Regulation Act the Board imposed a distinction between subparagraphs one and two of the relevant part of VPM Instruction 207-4-6.1.1 not present in the instruction itself. The distinction imposed by the Board was that conduct involving and revealing discrimination on the grounds of sex, race, religious belief and sexual orientation or involving and revealing racial and religious vilification, and/or conduct capable of constituting sexual harassment, as those concepts are understood in Victorian law through the provisions of the Equal Opportunity Act and the Charter of Human Rights and Responsibilities Act 2005, was not as serious as conduct involving or revealing violence, bestiality, obscenity, pornography or sexually explicit material. Such a distinction is neither contemplated nor required by VPM Instruction 207-4-6.1.1 and therefore is not required by s 69(1)(b) of the (Police Regulation) Act.”
In each proceeding, it is alleged that, by reason of those matters, the Board made a jurisdictional error, or alternatively, the Board made an error of law on the face of the record.
In the written outline of submissions filed on behalf of the plaintiff, the two principal contentions advanced on behalf of the plaintiff were:
(1)In considering the seriousness of the conduct of each police officer, the Board was required, but failed, to consider the concepts of discrimination and racial and religious vilification as those concepts are understood in Victorian law in the Equal Opportunity Act and the Charter of Human Rights and Responsibilities Act (“the Charter”). Those concepts are expressly included in VPM Instruction 207-4-6.1.1, and can only be taken into account as the decision maker considers the “relevant law”.
(2)The Board in each case impermissibly imposed a distinction between conduct involving and revealing discrimination on the grounds of sex, race, religious belief and sexual orientation or involving and revealing sexual and religious vilification, and/or conduct capable of constituting sexual harassment, on the one hand, and conduct involving or revealing violence, bestiality, obscenity, pornography or sexually explicit material, on the other.
First ground of review
The first ground of review is based on the construction of the second category (“the second category”) of emails, which are described in VPM Instruction 207-4-6.1.1 as “inappropriate material”, namely:
“Any discriminatory or vilifying language, images or sounds relating to an individual’s or groups personal characteristics, whether actual or presumed; or, to protected attributes under equal opportunity legislation, eg; sex, race, impairment, physical features, sexual orientation, religious or political beliefs, national origin or age.”
Ms D Mortimer SC, who appeared with Ms K Walker, on behalf of the plaintiff, submitted that, on its proper construction, the Appeals Board was required to consider whether the conduct of each officer, in sending the emails, was discriminatory within the meaning of the Equal Opportunity Act 2010 (Vic) (“the Equal Opportunity Act”) (or the Charter), or whether it constituted vilification within the Racial and Religious Tolerance Act 2001 (Vic). Ms Mortimer submitted that, by failing to consider whether the conduct constituted discrimination or vilification within the meaning of that legislation, the Board failed to take into account a material circumstance in determining the seriousness of the breaches by each officer of the instruction.
Ms Mortimer submitted that it was implied, within the second category, that the relevant decision-maker must determine whether there was discrimination or vilification within the relevant legislation. She based that submission on three factors. First, she submitted the effect of s 17 of the Act is to render any instruction, given by the Chief Commissioner, of legislative standing. Thus, she submitted that the instruction should be read harmoniously with legislation, which deals, specifically, with discriminatory or vilifying conduct. Secondly, she noted that s 76 of the Act provides for a scale of “penalties” in respect of a member who has committed a breach of discipline. She submitted that the scheme of police discipline, established by the Act, made it relevant to determine the seriousness of the breach of the discipline involved by reference to whether the officer had breached provisions of equal opportunity legislation. Thirdly, Ms Mortimer submitted that Victoria Police are bound to comply with the provisions of the equal opportunity legislation and the Racial and Religious Tolerance Act. Thus, she submitted that the purpose of the second category is to ensure that police members behave in a manner which complies with the norms of civic conduct set by the Equal Opportunity Act, the Racial and Religious Tolerance Act 2001 and the Charter.
In response, Mr E White, who appeared for each of the police members in the two proceedings, submitted that there was no basis upon which to imply, into the second category, a requirement that the decision maker determine whether the conduct of the member constituted discrimination or vilification under other legislation. First, he submitted that such a construction of the second category would, in fact, unnecessarily confine the ambit of that category. For, he submitted, conduct can constitute vilification or discrimination, without necessarily coming within the ambit of the Equal Opportunity Act or the Racial and Religious Tolerance Act. Secondly, Mr White submitted that the second category is only one instance, in the Instruction, of inappropriate material. The Instruction gives other examples of “language images or sounds”, which would not otherwise be unlawful. Thus, he submitted that there is no basis for requiring an inquiry, in respect of the second category, as to whether the particular emails constituted a breach of other legislation. Thirdly, Mr White pointed to s 91K of the Act, which requires the Appeals Board to have regard to the public interest, and to the interests of the applicant for review, in making its decisions. Mr White submitted that, thus, as the Act expressly provides for matters to be taken into account, there is less ground to imply an obligation on the Appeals Board to take into account matters, which are not the subject of express provision.
The first ground of review, contained in the originating motion[2] alleges that the Appeals Board failed to take into account a relevant consideration, by failing to “consider the concept of discrimination, and racial and religious vilification, as those concepts are understood in Victorian law”. In the course of submissions, I sought to clarify precisely what error is alleged by that ground. In particular, it was not clear whether, on the one hand, it is alleged that the Board was required to determine whether the emails constituted discrimination or vilification contrary to Victorian law, or, alternatively, whether it is alleged that the Appeals Board was required to “consider” whether the emails, which otherwise were discriminatory or vilifying, also contravened Victorian law. Initially, Ms Mortimer submitted that the decision maker was required to “look at the way in which the conduct might breach (Victorian law), not to make a finding necessarily.” However, in the course of her submissions, Ms Mortimer contended that, in determining whether the material came within the second category prescribed by the Instruction, and if so, the seriousness of it, the Board was required to determine whether the conduct breached the provisions of what she described as “equal opportunity legislation”. In other words, Ms Mortimer submitted that the terms “discriminatory” or “vilifying”, in the second category, were to be construed, by the Board, according to the meaning given to them by the Racial and Religious Tolerance Act and the Equal Opportunity Act and the Charter.
[2]See paragraph 33 above.
However, in submissions in reply Ms Mortimer adopted a slightly different position. She submitted that, in order that an email be inappropriate in accordance with the second category of example given in the instruction, it must constitute either discrimination under the Equal Opportunity Act or vilification under the Racial and Religious Tolerance Act, but it need not be a breach of either legislation. Ms Mortimer submitted that, if the Appeals Board had considered whether the emails constituted discrimination or vilification under that legislation, it would thereby have informed itself of the seriousness of the emails.
The starting point, for considering the first ground of review, is a consideration of the language, in which the relevant part of the Instruction is expressed. The second category, of inappropriate material described in the Instruction, is expressed in plain, ordinary English. In order to understand the phrase “any discriminatory or vilifying language, images or sounds”, it is not necessary to refer to any other legislation. That phrase is expressed in plain language. The second category then sets out the particular characteristics of an individual or group, to which the proscribed discriminatory or vilifying language, images or sounds must relate, namely, the personal characteristics of such an individual or group, or the “protected attributes under equal opportunity legislation”. The reference, in that part of the category, to the equal opportunity legislation, thus incorporates the particular attributes which are expressly protected under s 6 of the Equal Opportunity Act. Indeed, the examples given in the category – “sex, race and so on” - each find their place in s 6 of the Equal Opportunity Act. In other words, the Equal Opportunity Act is incorporated, to the extent to which it prescribes the particular attributes, in respect of which email material should not contain discriminatory or vilifying language, images or sounds. However, it does not, in that way, incorporate the meaning of “discrimination” contained in ss 7, 8 and 9 of that Act.
Accordingly, as Ms Mortimer correctly conceded, the second category does not, expressly, require the decision maker (in this case, the Appeals Board) to determine whether the email in question contains discriminatory or vilifying language, images or sounds within the Equal Opportunity Act or, for that matter, the Racial and Religious Tolerance Act. Ms Mortimer, however, submitted that such a requirement is to be implied, for the reasons which I have summarised above.
As I understand it, Ms Mortimer submitted that the concepts of discrimination and vilification, contained in that legislation, are to be implied as part of the second category, in order to give that category “content”. The short answer to that proposition is, of course, that the adjectives “discriminatory” and “vilifying” can be readily understood, without resort to the meanings given to them in other legislation.
Ms Mortimer further submitted that the other legislation is relevant, in considering whether emails come within the second category, and the seriousness of the breach of discipline by the officer, because reference to that legislation would enable the decision maker to understand the seriousness of the matter, contained in the relevant email.
That argument breaks down on a proper consideration of the Equal Opportunity Act and the Racial and Religious Tolerance Act. Section 8 of the Equal Opportunity Act states that direct discrimination occurs if a person “treats, or proposes to treat” a person with an attribute unfavourably because of that attribute. However s 8, of itself, does not prohibit such discrimination. Discrimination, as described in s 8, is prohibited in eight particular spheres of civic life, which are specified in Part 4 of the Equal Opportunity Act (namely, discrimination in employment; in employment related areas; in education; in the provision of goods and services and disposal of land; in accommodation; by clubs and club members; in sport; and in local government). Thus, a consideration of the definition of “discrimination” by the decision maker (here the Appeals Board) in s 8 of the Equal Opportunity Act, would not inform the decision maker of the seriousness or otherwise of the emails, because the Equal Opportunity Act only prohibits such discrimination in particular specified spheres.
Further, under s 8 of the Act, discrimination is constituted by “treating” a particular person with an attribute unfavourably because of that attribute. The section contains two examples of such “treatment”, namely, direct discrimination in either employment or in the provision of accommodation. If that definition were applied directly to the second category, in the Instruction, it would significantly narrow the ambit of that category. In ordinary parlance, an email could readily be understood to be “discriminatory” without, directly, “treating” a person, or persons, in the manner described in s 8 of the Equal Opportunity Act. Indeed, in the present case, a substantial number of the emails were – and were characterised by the Appeals Board to be - “discriminatory”, notwithstanding that, on a careful consideration, they may not come within s 8 of the Equal Opportunity Act. In ordinary language, an email would be discriminatory if it, either expressly or implicitly, made an unfavourable or adverse distinction against a person or group of persons. It is readily understandable that the Instruction would, expressly, seek to prohibit dissemination of such material. If the second category of the Instruction were to be construed in the manner contended for by the plaintiff, it would significantly undermine the evident purpose served by the second category.
The foregoing considerations are even more pertinent, when considering the meaning of the adjective “vilifying” in the second category. The only legislation, to which I was referred, which relates to unlawful vilification, is the Racial and Religious Tolerance Act 2001. Part 2 Division 1 of that Act is entitled “Unlawful Vilification”. Section 7 is headed “Racial Vilification Unlawful”. Section 8 is headed “Religious Vilification Unlawful”. Neither section, itself, in fact contains the expression “vilification”. The first subsection of each section provides, respectively, that a person must not, on the ground of the race, or the religious belief or activity, of another person or class of persons, engage in conduct that incites “hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons”.
If “vilifying”, in the second category, were to be construed according to the Racial and Religious Tolerance Act, it would severely restrict the meaning of that term, and the type of emails prohibited by the Instruction in two ways. First, as I have noted, the Racial and Religious Tolerance Act only proscribes racial and religious vilification. On the other hand, the second category of the Instruction is expressly directed to vilification in relation to other attributes, including sex, impairment, physical features, sexual orientation, or age (or, indeed, any of the other attributes described in s 6 of the Equal Opportunity Act).
Secondly, the description of the behaviour, characterised as “vilification”, in s 7(1) and s 8(1) of the Racial and Religious Tolerance Act, is, understandably, somewhat more narrow than the ordinary, everyday understanding of the adjective “vilifying”. The Racial and Religious Tolerance Act 2001 is designed to proscribe certain behaviour in society. It is understandable that, in order that conduct constitute “vilification” under that Act, it must involve conduct of a quite serious nature. On the other hand, in ordinary parlance, in order that conduct be “vilifying”, it does not need to attain the standard set in s 7 and s 8 of the Racial and Religious Tolerance Act. In general terms, to vilify a person is to lower or lessen that person’s worth, or to ridicule that person, or to make that person of little account or estimation. In order that conduct constitute vilification in ordinary English, it need not, necessarily, involve inciting hatred against, serious contempt for, or revulsion or serious ridicule of, another person or class of persons. It is understandable that the Instruction would seek to prohibit the dissemination of material, which is vilifying, in the sense in which that adjective is commonly understood in ordinary everyday English. The construction of the second category, contended for by the plaintiff, would thus unjustifiably narrow the ambit of the conduct contemplated by the second category, and would, thereby, significantly undermine the clear purpose of that part of the Instruction.
For those reasons, I do not accept the submission, made on behalf of the plaintiff, that, in determining the seriousness of the emails distributed by the three police members, the Appeals Board was required to consider whether the emails, or any of them, contained material which was discriminatory or vilifying within the meaning of the Equal Opportunity Act, the Charter, or the Racial and Religious Tolerance Act. Accordingly, the first ground of review, in each proceeding, must fail.
Second ground of review
In respect of the second ground of review, Ms Mortimer submitted that, in each of its three decisions, the Appeals Board misconstrued VPM Instruction 207-4-6.1.1, by interpreting it as imposing a hierarchy of seriousness, with the categories of pornography, obscenity, and offensiveness at the top of the hierarchy. She submitted that, in each of the three decisions, the Board considered that emails, which came within the first category of the Instruction and, in particular, those which were obscene, pornographic or offensive, were, for that reason alone, more serious than emails, which came within the second category, namely, emails which contained discriminatory or vilifying language, images or sounds. Accordingly, Ms Mortimer submitted that, in each case, the Board asked itself the wrong question, in assessing the seriousness of the breaches of discipline by each officer, by imposing an impermissible distinction in construing the Instruction.
In support of that submission, Ms Mortimer referred to sections of each of the three decisions. In particular, she referred to the passages from the decision in relation to Senior Constable Johnston, which I have set out at paragraphs 13 to 17 above. She submitted that those passages reveal that the Board considered that only the email depicting bestiality was at the high end of seriousness, and that it regarded material, which was racially discriminatory or otherwise offensive, to be less serious. Thus, she submitted that the Appeals Board drew an impermissible distinction between obscene emails (which it regarded as serious) and discriminatory emails (which it regarded as less serious).
Similarly, in relation to Sergeant Ball, Ms Mortimer referred to the passages from the decision, which I have set out in paragraphs 21 to 23 above. She submitted that those passages reveal that the Appeals Board considered that, because material, which was “generally offensive”, could not be categorised as “pornographic”, it was not at the high end of seriousness. Ms Mortimer submitted that the Board thereby drew an impermissible distinction between pornographic emails (which it considered serious) and offensive emails (which it considered to be less serious).
Next, Ms Mortimer referred to the passages from the decision of the Appeals Board in relation to Senior Constable Lamont which I have set out at paragraphs 27 to 31 above. She submitted that, in the passage which I have set out at paragraph 31, the Board drew a distinction between emails which are considered “more serious in terms of offensiveness” on the one hand, and emails which were “offensive to varying degrees” or which were “vilifying in terms of race or physical appearance”. She submitted that, in the same passage, the Board also drew an impermissible distinction between pornographic emails (which it regarded as serious) and other offensive emails (which it regarded as less serious).
Ms Mortimer also submitted that the Appeals Board did not explain, in its decisions, why material, which was, for example, pornographic, was, per se, more serious than material, which was, on the other hand, discriminatory or vilifying. Thus, she submitted that the Board, in considering the seriousness of each email, made an error of law on the face of the record, namely, by misconstruing the Instruction.
In response, Mr White submitted that the fact that the Appeals Board made particular findings as to the relative seriousness of different emails in each case, did not mean that the Board had, thereby, made those findings according to a ranked system of hierarchy of seriousness, as contended on behalf of the plaintiff. Mr White pointed out that, in each case, the Appeals Board examined each individual email. He submitted that the fact that some emails were found to be more serious than others, and were categorised or described in a particular way, does not support the proposition that emails, of that category, were, ipso facto, considered by the Board to be more serious than emails, which were characterised in a different way. Thus, Mr White submitted that, in each case, the Board did not categorise the seriousness of a particular email according to whether it came within a particular category, such as being pornographic or obscene. Rather, he submitted, the Board appropriately allocated the degree of seriousness in respect of each email, according to the content of the particular email.
In determining the issue raised by the second ground of review, it is useful to commence with three preliminary points. First, Mr White did not contend that, in considering the seriousness of a particular email, the Appeals Board would be entitled to distinguish between emails, which belong to a particular class or category, or which answer to a particular description. Clearly Mr White was correct in not seeking to make any such contention. The seriousness, or otherwise, of the inappropriateness of an email, which contravenes the Instruction, must depend on the nature and content of the particular email, and not, simply, on whether the email comes within a particular description, such as being pornographic or obscene. Ultimately, the question, which I must decide, is whether, on an appropriate understanding of the three decisions, the Board, in any of them, determined the seriousness of the emails, which it was considering, according to the kind of hierarchy alleged by the plaintiff.
Secondly, in determining that question, it is important to bear in mind that the decisions, which are under review, are reasons of an administrative decision maker, and not reasons for judgment of a court of law. It is well recognised that administrative decisions may contain a certain looseness of language, or infelicity of expression, which might not be expected in reasons for judgment. Thus, a court should not be too ready to discern error in an administrative decision. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang[3], Brennan CJ, Toohey J, McHugh J and Gummow J, in their joint judgment, referred, with approval, to the decision of the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd[4], and, in particular, to the passage from the judgment of the Full Court, which stated:
“The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts … (citations omitted). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error … (citation omitted).”[5]
[3](1996) 185 CLR 259, 272.
[4](1993) 43 FCR 280.
[5]Above page 287.
In Wu Shan Liang, the joint judgment then continued:
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”[6]
[6]Above page 272; see also at 291 (Kirby J); Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533, 554 [56] (McHugh J), 576 [134] (Callinan J); Minister for Immigration and Citizenship v SZ MDS & Anor (2010) 240 CLR 611, 623 [35] (Gummow ACJ, Kiefel J).
Thirdly, obviously, in determining the appropriate disposition in respect of each of the three officers, the Board was not only entitled, but required, to assess for itself the seriousness of each of the emails distributed by the particular officer. In each case, the Board undertook such an evaluation, by examining each of the emails distributed by the particular officer. The question, raised by the second ground of review, is not whether I, or this Court, disagrees with the assessment, or evaluation, of each of the emails undertaken by the Board. As I have earlier noted, it is not for this Court to conduct a review of the merits of the decision of the Board in each case. Rather, the second ground of review raises the narrower point, whether, in conducting the evaluation and assessment of the emails, the Board adopted a fixed hierarchy according to whether the email belonged to a particular kind of inappropriate material prescribed by the Instruction, and in particular, whether it was pornographic or obscene.
Bearing those three matters in mind, I then turn to the assessment of the emails undertaken by the Board in each case.
(a) The decision of the Appeals Board in relation to Senior Constable Johnston.
As I stated, the principal focus of the submissions by Ms Mortimer, in respect of the decision relating to Senior Constable Johnston, were the concluding remarks of the Appeals Board, which I have set out in paragraphs 16 and 17 above.
If those passages were read in isolation from the remainder of the decision of the Appeals Board, it might be concluded that the Board had assessed the seriousness of the emails distributed by Senior Constable Johnston by treating material, which depicted bestiality, as inherently more serious than material, which was discriminatory or vilifying in terms of race and impairment, or which was otherwise offensive.
However, it is necessary to consider those passages, and the Appeals Board’s decision, in context. As I have earlier noted, the Board commenced by examining, closely, each of the eleven emails distributed by Senior Constable Johnston. It described each of them as being “inappropriate” in terms of the Instruction, and it described the eleventh email, which contained a video depicting an act of bestiality with a donkey, as “clearly inappropriate”. Pausing there, it is arguable that other emails might also have deserved the addition of the epithet “clearly”, when being described as inappropriate. However, that denotation of the emails was clearly a matter for the Board, and, as I stated, it is not for this Court to review the merits of the factual findings made by the Board. It is clear that, to the Board’s perception, the eleventh email stood out as being the most inappropriate of those distributed by Senior Constable Johnston. Thus, having considered the nature of the emails, the Board observed that while the content of the emails was “sometimes offensive or discriminatory” it was of a “more serious nature” in only one case.
Each factual finding by the Board was repeated in the two later passages in the decision of the Board, to which I have referred, and which I earlier set out at paragraphs 16 and 17 of this judgment. In each of those passages, the Board does characterise the eleventh email as serious or extremely offensive “in that it depicts bestiality” (emphasis added). That expression does suggest that the Board attributed the degree of seriousness to the eleventh email, because it depicted bestiality. However, as I have earlier stated, it is important to be careful not to place excessive emphasis on the choice of language of an administrative tribunal. Further, the phrase, to which I have just referred, must be read in context, and in particular, in the context of the preceding evaluation by the Board of the emails, in which it came to the conclusion that the eleventh email stood out in terms of the degree to which it was inappropriate.
Certainly, in evaluating the eleven emails, the Board was mindful of the relevance of the second category in the Instruction. In earlier passages in its decision (which I have quoted at paragraphs 14 and 15) the Board noted the misconception by Senior Constable Johnston that the instruction only prohibited the distribution of pornographic emails. Further, the Board noted that the emails were all offensive, while some were vilifying or discriminatory, and others could be described as approaching being obscene. In this respect, it is noteworthy that the Board did not allocate any particular “hierarchy” of seriousness according to whether the material was offensive, obscene, vilifying, or discriminatory.
Taking into account, first, the context in which the passages, referred to by Ms Mortimer, are to be found, and, secondly, the admonition in the authorities, that administrative decisions may contain a degree of looseness or infelicity of language which would not be expected in a judgment of a court, I do not consider that the decision of the Board reveals that it adopted a hierarchy of seriousness of the emails, as submitted on behalf of the plaintiff. In particular, I am not persuaded that the Board considered that the eleventh email was inherently more serious than the other ten emails, because, only, that it depicted bestiality. Rather, on an appropriate understanding of the Board’s decision, I am satisfied that the Board reached the conclusion, that the eleventh email was the most serious, because of the nature of its contents. Thus, I am not persuaded that ground 2 of the review is made out in respect of the decision of the Appeals Board in relation to Senior Constable Johnston.
(b) The decision of the Appeals Board relating to Sergeant Ball
As I have earlier stated, Ms Mortimer submitted that, in its decision relating to Sergeant Ball, the Board drew an impermissible distinction between offensive emails (which were less serious) and pornographic emails (which would be more serious). In particular, she relied on the passage from the decision of the Board, which I have set out at paragraph 21 (above).
Two observations must be made about that passage. First, I am not persuaded that the statement by the Board – that none of the emails could be categorised as pornographic – was intended, or should be understood to be, a reason for the conclusion contained in the sentence which immediately preceded, namely, that the nature of most of the emails in question was not in the Board’s view “at the high end of seriousness”. Rather, it would seem, on a proper reading of that passage, that the observation, that none of the material was pornographic, was a prelude to the passage which followed it. The Board considered it relevant that most of the material would “likely be freely circulated in the broader email domain”, and it noted that police officers “also share that broader domain”. It is relevant that the Board then stated that “ … perhaps the issue is more one of understanding and knowledge of what is appropriate in the work domain as distinct from the private”. That observation was clearly directed to the misconception by Sergeant Ball (which the Board noted in the passage to which I have set out at paragraph 22 of this judgment) that the type of email which was “inappropriate”, in terms of the instruction, was confined to material which was pornographic. As the Board noted in that passage, “to not recognise the material with racial or other discriminatory overtones was inappropriate demonstrates poor judgment on his part”.
In that way, I do not consider that the observation by the Board (in the passage which I have quoted at paragraph 21 above), that the material was not pornographic, was not intended, nor should it be understood, to be a reason given by the Board why the material was not at the “high end of seriousness”.
Secondly, that passage in the decision, on which the plaintiff relies, must be read in the overall context of the decision. The Board closely examined each of the 34 emails distributed by Sergeant Ball, and which were the subject of the charge against him. In the passage of the decision, which I have set out at paragraph 23 above, the Board identified eight emails (emails 1, 13, 14, 16, 17, 28, 29 and 30) as being the more serious of those 33 emails. In examining those emails, the Board described email 1 and email 16 as “clearly inappropriate”, and email 13 and email 14 as “obviously inappropriate”. Emails 1, 14 and 16 contain material, which was racially discriminatory or vilifying, and email 13 was discriminatory (and vilifying) based on sexual orientation. Thus, the Board did not adopt any hierarchy in considering and comparing the 33 emails. Rather, as I have noted, it is relevant that three of the eight emails, which the Board considered to be more serious than the remainder, contained material which was discriminatory or vilifying in terms of race.
Accordingly, I do not consider that, on a proper examination of the decision of the Board in respect of Sergeant Ball, the Board adopted an impermissible hierarchy of seriousness, pursuant to which the Board classified the emails on the basis as to whether they were pornographic or otherwise. Rather, as I stated, I consider that the reference by the Board, to the emails not being pornographic, was directed to another issue, namely, the misconception by Sergeant Ball that, because they were not pornographic, the emails were not inappropriate, and to the fact that, because they were not pornographic, the emails were available in the broader domain, which police officers also share. In that way, the references to the emails not being “pornographic” was, in my view, to be understood as noting the misconception by Sergeant Ball as to what was inappropriate. Further, as I have pointed out, in examining the 33 emails, the Board did not, amongst them, allocate a particular degree of seriousness, according to whether the emails belonged to a particular genre.
It follows that the second ground of review, in respect of the Appeals Board’s decision in relation to Sergeant Ball, should also fail.
(c) The decision of the Appeals Board in relation to Senior Constable Lamont
The submissions of the plaintiff, in respect of the second ground of review, focused on the passage from the decision of the Appeals Board, in relation to Senior Constable Lamont, which I have set out in paragraph 31 of this judgment.
Considered in isolation, that passage might be understood to suggest that the Board regarded the emails as being less serious than emails which contain pornographic material. However, again, it is important to consider that passage in the context of the whole of the decision of the Board.
Earlier in its decision, the Board closely examined each of the 25 emails distributed by Senior Constable Lamont, which were the basis of the charge against him. It concluded (in the passage which I set out at paragraph 27) that the content of the emails was “sometimes offensive or discriminatory” but that it was “of a more serious nature in only three or four cases”. It is not possible to detect, from the summary of each of the emails by the Board, which of the emails were the three or four which the Board considered to be more serious. Certainly, from that examination, it is not evident that the Board adopted any form of “hierarchy” in assessing the nature and seriousness of each email.
Later on in its decision (in the passage which I have quoted at paragraph 29), the Board again repeated that, with the exception of a few, the nature of the emails was not “at the high end of seriousness”. In that passage, the Board stated that, while the emails were offensive, they would “likely to be freely circulated in the broader email domain”, which police officers shared. That observation was relevant, because, in the next passage, the Board noted that Senior Constable Lamont had considered that material which was “inappropriate” was confined to material which was pornographic. The Board observed that the failure by Senior Constable Lamont, to recognise that material with racial or “other discriminatory overtones” was inappropriate, demonstrated poor judgment on his part.
Pausing there, two observations are relevant about those passages of the Board’s decision. First, the Board clearly considered that some of the emails (which it later said were three or four) were at the “high end of seriousness”, notwithstanding that none of them was pornographic. Secondly, in those paragraphs, the issue of whether the material was pornographic was, it would seem, relevant to the Board’s observation that the material was part of the “broader (email) domain” which police officers share.
The passages, to which I have just referred, are a necessary prelude to the passage, particularly relied upon by the plaintiff in this case. In that passage (which I have set out at paragraph 31) the Appeals Board noted that it considered that three or four of the emails were of a more serious nature in terms of offensiveness. In the next sentence, the Board observed that, of the remaining emails, all were offensive to varying degrees, some were vilifying in terms of race or appearance, and others could be described as graphic in terms of violence. The Board did not distinguish between those two “types” of emails, save to observe (in the next sentence) that the graphically violent emails were distributed largely to other police, which would have rendered the material less offensive to them. However, the reference to emails which were “offensive to varying degrees”, and which were “vilifying in terms of race or physical appearance”, in the second sentence in that passage, does not mean that emails fitting those descriptions were necessarily excluded from the three or four emails, which the Board considered were of a more serious nature. Rather, that second sentence was a summary of the emails, which were not among the three or four emails, which the Board considered were more serious.
In the final sentence of that passage, the Board noted: “None of the material was considered to be pornographic albeit graphic in other respects”. Ms Mortimer placed some emphasis on that sentence, submitting that it indicated a “hierarchy” according to which the Board considered that pornographic emails would be more serious than emails which were discriminatory towards, or identifying of, persons with particular attributes. However, read in the context of the whole of the decision, I do not consider that the Board intended, or should be understood, as elevating the genre of pornographic emails to the highest level in ranking of the seriousness of material, which might be considered to be inappropriate for the purposes of the Instruction.
I have reached that conclusion for two reasons. First, the sentence in question came within a section of the Board’s decision which summarised the Board’s conclusions as to the nature, as well as the seriousness, of the emails distributed by Senior Constable Lamont. Secondly, the sentence needs to be understood in the context of the observations, made earlier by the Board (in the passages I have referred to at paragraphs 28 and 29), in respect of Senior Constable Lamont’s misconception that the only material, which was inappropriate, was material which is pornographic. In that way, the last sentence, in the passage I have quoted at paragraph 31, is a reference to the point made by the Board in the preceding sentence, namely, that while some of the emails depicting violence were graphic, they were not pornographic, and thus they would be likely to have been freely circulated in the broader email domain which police officers share.
For the foregoing reasons, taken as a whole, and bearing in mind the caution which must be exercised in examining the language used in a decision of an administrative tribunal, I do not consider that the decision of the Appeals Board, in respect to Senior Constable Lamont, does disclose that the Board adopted an impermissible hierarchy of seriousness of the kind contended for on behalf of the plaintiff. Accordingly, the second ground of review, in respect of the decision of the Appeals Board in relation to Senior Constable Lamont should fail.
Conclusion
For the reasons which I set out above, I have reached the conclusion that, in relation to its decision in respect of three police officers, Senior Constable Johnston, Sergeant Ball and Senior Constable Lamont, the Appeals Board did not commit an error of law on the face of the record, or jurisdictional error, as alleged by the plaintiff. It follows that, in each case, the proceeding against the defendants must be dismissed.
2
2
0