Chief Commissioner of Police v Yong Chen , - and - and Police Registration and Services Board
[2015] VSCA 361
•18 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0086
| CHIEF COMMISSIONER OF POLICE | Appellant |
| v | |
| YONG CHEN | 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 361 |
| JUDGMENT APPEALED FROM: | [2015] VSC 380 (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 s 86AM.
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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
In November 2013, Mr Chen came before the Melbourne Magistrates’ Court on charges of failing to store firearms and ammunition correctly. The charges were found proven.
Mr Chen was a Protective Services Officer (PSO) and the findings of the Magistrates’ Court enlivened a discretion of the Chief Commissioner to discipline him under the Police Regulation Act 1958 (‘the Act’).[1]
[1]This Act was repealed on 1 July 2014 but transitional provisions in the Victoria Police Act 2013 have continued its effect with respect to the disciplinary provisions with which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.
On 28 March 2014, a delegate of the Chief Commissioner determined to dismiss Mr Chen pursuant to s 80(1) of the Act.
Mr Chen then sought a review of this decision before the Police Registration and Services Board (‘the PRS Board’). On 8 September 2014, a division of this Board (‘the Board’) set aside the delegate’s decision and, in substitution, fined Mr Chen $2,000 and placed him upon a 12 month good behaviour bond.
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 Chen [2015] VSC 380 (‘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
In September 2013, Mr Chen was a PSO who had yet to complete serving a probationary period.
At the conclusion of his shift on a Sunday, Mr Chen collected three rifles and a box containing 69 rounds of ammunition from a friend’s house in Craigieburn and took them home to his flat. Although he had the facility to store them safely in a gun safe, he failed to do so.
On 17 September 2013, two police officers attended Mr Chen’s flat and questioned him with respect to the whereabouts of the firearms. Mr Chen initially gave false answers to the police but then admitted that the guns were within the flat. The police officers found the rifles, the ammunition and two gun cases loose within his bedroom.
Mr Chen was charged in the Magistrates’ Court with failing to store long arms and ammunition correctly. On 28 November 2013, he pleaded guilty and was fined $1,000 as part of an aggregate order without conviction and the firearms, ammunition and carry cases were forfeited.
Part IV of the Act provides for Employment, Disciplinary and Other Matters. Division 3 deals with members who are alleged to have committed criminal offences punishable by imprisonment. Part IV deals with ‘members’. Chen was not a ‘member’, but rather a ‘protective services officer’, yet was deemed to be a member for the purposes of pt IV and pt IVAA (which part deals with appeals and reviews) by operation of s 118B of the Act.
Section 80 deals with the powers of the Chief Commissioner where a charge against a member under the criminal law has been found proven and relevantly provides that:
(1)If a member of the force has been charged under the criminal law with an offence punishable by imprisonment (whether or not within the State or in any other jurisdiction) and the offence has been found proven, the Chief Commissioner may —
…
(e) dismiss the member.
In accordance with these provisions, after the charges against Mr Chen were found proven, Commander Purton, under a delegation by the Chief Commissioner, determined to dismiss Mr Chen from the Victoria Police Force. In his reasons for decision, Commander Purton identified as relevant, amongst other things:
·The impact of your actions having regard to the reputation of Victoria Police and the broader expectations of the community.
·Victoria Police and the community expect members to obey the law and to possess the highest levels of integrity.
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 Chen 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
The Chief Commissioner was represented before the Board by Sergeant Hose. In written submissions, Sergeant Hose emphasised Commander Purton’s findings and, in particular, the public interest considerations which he took into account:
Commander Purton took into account the submissions and mitigating material led by the Applicant. The dismissal was protective of the organisation and the community. The key points of the Victoria Police submission are:
•The Applicant, as a protective services officer, holds a significant position in the community and a clear message needs to be sent to the public and the PSO membership that this behaviour is not tolerated.
•The decision reflects the organisational values of Victoria Police and is consistent with a deliberate effort by the Chief Commissioner to significantly impact the culture of the organisation into the future.
The dismissal was not harsh but appropriate and Commander Purton’s findings gave appropriate considerations to the interests of both the applicant and the public.
In dealing with the gravity of Mr Chen’s misconduct, Sergeant Hose submitted:
The harm to the reputation of Victoria Police (the employer) and damage to the community’s confidence in Victoria Police pose as potential and significant effects of this decision and must be given appropriate consideration as well as sufficient weight when balanced with the remaining factors including the harsh effect on the individual employee. The effect of the decision on the employee is not a solitary consideration.
In dealing with community expectations, Sergeant Hose went on to submit:
The public interest consideration relates not to an expectation of harsher penalties, but rather an expectation of a standard of behaviour expected of police officers and protective services officers. The public have a right to expect that a protective services officer would not leave firearms in an unsecured state.
In conclusion, she submitted:
The applicant has committed a serious breach of discipline. The sanction of dismissal upholds the expectations of 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.[9]
[9]Emphasis added.
In oral submission, Sergeant Hose put the case this way:
Thank you, sir. The safe storage of firearms and ammunition by licence holders is a fundamental requirement of firearm regulation in Victoria and necessary to ensure public safety. Noncompliance is a serious matter which is evident by the penalties attached in the criminal jurisdiction.
Every day Victoria Police respond to incidents where firearms have been used in the commission of an offence and these situations pose a significant threat of possible life or serious injury to members of the public and to our members of the organisation.
As a protective services officer and a registered holder of a firearm’s licence for five years, the applicant should have had an unequivocal understanding of the legislative requirements regarding the storage of his firearms and ammunition and that compliance was of paramount importance.
It is evident from the photos contained in the criminal brief that the firearms and ammunitions located were significant. There is a Remington seven-millimetre bolt-action centrefire longarm; a Marlin Centre .45-70 government lever-action longarm; a Savage Rimfire .22 bolt-action longarm along with 30 rounds of Remington seven-millimetre cartridge ammunition, 40 rounds of .45-70 government hollow point cartridge ammunition and nine rounds of .45-70 government cartridge ammunition. Amongst other considerations, the potential harm and risk to the community if the firearms and ammunition had been stolen was considered and articulated by the hearing officer, Commander Purton, in his determination of this matter.
The applicant was not honest with police when asked about the whereabouts of his firearms. At the hearing the applicant read a prepared submission to the hearing officer in which he stated that he proposed to surrender all his firearms and ammunition to the court before the judge made his decision so that such irresponsible offences would not happen again. In actual fact the forfeiture application was opposed.
Failure to tell the truth and, in this instance, during the infancy of one’s career greatly impacts on the essential relationship of trust and confidence that is required within the force. Members of the community and indeed Victoria Police have the expectation that police officer and protective service officers are honest, they possess high levels of integrity and that they obey the law that they have sworn to uphold. The conduct of the applicant fails to reflect the organisational values of Victoria Police and the sanction of dismissal upholds the expectation and affords protection of Victoria Police and of the community. In all the circumstances the sanction was not harsh, unjust or unreasonable and should be affirmed. Thank you.[10]
[10]Emphasis added.
In the course of submission to the Board, Mr Chen’s advocate also made some implicit reference to the public interest component of s 86AM: ‘He concedes it reflects poorly not only on him but on the force as a whole.’
In a prepared statement, Mr Chen apologised for his conduct and its consequences including the ‘damage that has already been done to the Victoria Police Force’s reputation.’
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 summarised the evidence relating to Mr Chen’s misconduct and the submissions which were made on his behalf. It went on to state:[12]
Sergeant HOSE argued that the safe storage of weapons and ammunition was a fundamental obligation. The firearms in question were potentially lethal in the wrong hands and the Applicant both as a serving PSO and a person experienced in firearms should have been aware of the risks involved in even temporarily leaving the firearms unsecured.
She argued that his dishonesty in relation to the whereabouts of the guns told against the Applicant and that this was a case where the Applicant had failed to uphold the organisation’s values.
There is no question that the Applicant made a serious error of judgment. He allowed inconvenience to overcome compliance with the law with respect to weapons storage. However the Board notes that he had for five years apparently been compliant with his obligations and Mr GORISSEN repeated his argument that the incident should be seen as an aberration.
He also relied on the penalties imposed in the 4 cases to which reference has been made. The Board agrees with Sergeant HOSE that those cases do not strictly raise a parity issue however the Board agrees with Mr GORISSEN that the penalty imposed for 3 not completely dissimilar firearm offences are not without sentencing significance.
The Board acknowledges the force of the arguments raised by Sergeant HOSE on the seriousness of the offence of incorrect storage of the weapons however his unblemished record over the last 5 years that the Applicant had held a licence provides some support for Mr GORISSEN’s argument that the Applicant’s lapse on this occasion can be seen as an aberration and this conclusion in conjunction with the other matters raised in mitigation by Mr GORISSEN persuades the Board that in all of the circumstances the sanction of dismissal was harsh.
[12]Emphasis added.
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, amongst other things, expressly refer to the submissions of Sergeant Hose concerning matters raising considerations of the public interest, including the public interest in the safe storage of weapons and ammunition and the failure of the applicant to ‘uphold the organisation’s values’.
The submissions of the parties
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.[13] The s 86AM(3) factors are to be given weight as fundamental considerations involved in and elements of the required decision-making process.[14]
[13]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].
[14]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.[15]
[15]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[16] and are not in issue.
[16]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 expressly refer to it very telling.[17]
[17]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 Chen that the inference which the applicant invites should not be drawn, having regard to the following matters identified by the trial judge:
·the experienced nature of the Board;[18]
·the straightforward nature of the legislation;[19]
·the fact that the submissions of Sergeant Hose spelt out clearly the importance of the Board’s obligation to consider the public interest and the factual matters relied upon by the Chief Commissioner falling within the legal concept of the public interest relevant to the decision of the Board;[20]
·the fact that the Board had before it Commander Purton’s reasons;[21]
·the fact that in the course of its reasons (albeit in the context of a specific factual issue) the Board said it had considered the submissions of the parties;[22]
·the fact that the Board expressly acknowledged the force of the arguments advanced by Sergeant Hose.
[18]Reasons [15].
[19]Ibid [15].
[20]Ibid [15].
[21]Ibid [16].
[22]Ibid [17].
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.[23]
[23]Ibid [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.[24]
[24][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:[25]
[25](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[26] 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:
[26](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[27] 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.
[27]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[28] 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.[29]
[28][1953] VLR 399, 404.
[29][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).
In my view, it is plain that the Board did have regard to Sergeant Hose’s submissions concerning the public interest. The Board specifically referred to the submission that the applicant had failed to uphold the organisation’s values and it specifically acknowledged the force of the arguments raised by Sergeant Hose concerning the seriousness of the offence. Thus, while it is true that the Board did not, in terms, refer to ‘the public interest in maintaining the integrity of and community confidence in the force’ as a consideration to which it was required to have regard, nevertheless it is plain that it did, in fact, have regard to this consideration.
My conclusions in this regard 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 of the specific aspects of the public interest identified in s 86AM(3);
(d) the general character and obvious relevance of such factors;
(e) the inherent improbability that the Board did not have regard to such factors;
(f) the fact that the determination was not formulated or delivered pursuant to a statutory obligation to give reasons; and
(g) 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:[30]
[30]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].
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.
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.[31]
[31]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 appropriate decision that should have been made in respect on Mr Yong Chen in relation to the firearms offences, which were found proved.
However, the details of those offences are significant because Mr Chen’s conduct had the potential to affect community safety. The firearms offences with which he was charged concerned three firearms and ammunition which were not properly stored: ‘a Remington seven-millimetre bolt-action centrefire longarm; a Marlin Centre .45-70 government lever-action longarm; a Savage Rimfire .22 bolt-action longarm along with 30 rounds of Remington seven-millimetre cartridge ammunition, 40 rounds of .45-70 government hollow point cartridge ammunition and nine rounds of .45-70 government cartridge ammunition’. Mr Chen initially lied when questioned about the whereabouts of the weapons.
The decision of the delegate, Commander Purton, addressed the public interest considerations specified by s 86AM. For instance, he referred to the impact of Mr Chen’s actions as having ‘the potential to damage the reputation of Victoria Police and to diminish public confidence’.
So too did the submissions of the Chief Commissioner’s representative before the Board, Sergeant Hose, who described the safe storage of firearms and ammunition by license holders as a ‘fundamental requirement of firearm regulation in Victoria and necessary to ensure public safety’.
Sergeant Hose also submitted:
Members of the community and indeed Victoria Police have the expectation that police officer and protective service officers are honest, they possess high levels of integrity and that they obey the law that they have sworn to uphold. The conduct of the applicant fails to reflect the organisational values of Victoria Police and the sanction of dismissal upholds the expectation and affords protection of Victoria Police and the community. In all the circumstances the sanction was not harsh, unjust or unreasonable and should be affirmed.
The Board’s decision
The key paragraphs in the Board’s statement were as follows:
Sergeant Hose argued that the safe storage of weapons and ammunition was a fundamental obligation. The firearms in question were potentially lethal in the wrong hands and the Applicant both as a serving PSO and a person experienced in firearms should have been aware of the risks involved in even temporarily leaving the firearms unsecured.
She argued that his dishonesty in relation to the whereabouts of the guns told against the Applicant and that this was a case where the Applicant had failed to uphold the organisation’s values.
There is no question that the Applicant made a serious error of judgment. He allowed inconvenience to overcome compliance with the law with respect to weapons storage. However the Board notes that he had for five years apparently been compliant with his obligations and Mr Gorissen repeated his argument that the incident should be seen as an aberration.
He also relied on the penalties imposed in the 4 cases to which reference has been made. The Board agrees with Sergeant Hose that those cases do not strictly raise a parity issue however the Board agrees with Mr Gorissen that the penalty imposed for 3 not completely dissimilar firearm offences are not without sentencing significance.
The Board acknowledges the force of the arguments raised by Sergeant Hose on the seriousness of the offence of incorrect storage of the weapons however his unblemished record over the last 5 years that the Applicant had held a licence provides some support for Mr Gorissen’s argument that the Applicant’s lapse on this occasion can be seen as an aberration and this conclusion in conjunction with the other matters raised in mitigation by Mr Gorissen persuades the Board that in all of the circumstances the sanction of dismissal was harsh.
The trial judge’s reasons
His Honour was not satisfied that the Chief Commissioner had established that the Board failed to give active consideration to the public interest in its review and was not prepared to infer that the Board failed to take that factor into account.
His Honour referred to the experience of the President of the Board and to the straightforward terms of the legislation. While there was no specific reference to the phrase ‘the public interest’ in the Board’s reasons, the Board did acknowledge the force of the arguments raised by the advocate for the Chief Commissioner as to the seriousness of the offence. His Honour also stated that the only sensible purpose for the Board’s imposition of a fine, given the protective nature of the legislation, was to deter Mr Chen and other police officers from similar conduct. That, in itself, showed that the Board actively considered the public interest.
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.[32] The following statement provides guidance as to the significance of the statement made by the Board:[33]
[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.
[32]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
[33]East Melbourne Group Inc v Minister for Planning (2009) 23 VR 605, 661–2 [228] (Ashley and Redlich JJA) (citations omitted).
The 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.[34] That is all that was required, no matter how the duty is described.[35] A mere recitation of submissions does not reveal that particular matters included in the submissions were had regard to.
[34]Tickner v Chapman (1995) 57 FCR 451, 495 (Kiefel J).
[35]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 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’.[36] 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.[37] 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 Chen as the applicant for review. The proper construction of s 86AM identified those considerations as matters to which the Board must have regard.[38]
[36]Section 86AM(2).
[37]Cf O’Sullivan v Farrer (1989) 168 CLR 210, 216.
[38]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40 (Mason J).
The Board’s statement contained no express reference to the factors of maintaining the integrity of, and community confidence in, the force. Rather, the statement referred to the facts giving rise to the charges, the seriousness of the offences, the penalties imposed in four other cases and stated that Mr Chen’s conduct might be regarded as an aberration in view of ‘his unblemished record over the last 5 years’. This statement suggests that the Board adopted a path of reasoning that would have been more appropriate in sentencing following a conviction for a criminal offence. Indeed, when considering the penalties imposed in the other four cases, the Board stated:[39]
…the Board agrees with Mr Gorissen that the penalty imposed for 3 not completely dissimilar firearms offences are not without sentencing significance.
[39]Emphasis added.
The sentencing process involves purposes which differ from those applicable to the imposing of sanctions for disciplinary offences by members of the police force.[40]
[40]Sentencing Act1991 s 5 (sentencing guidelines).
In finding that the Board had given regard to the public interest considerations required under the Act, the trial judge relied on a reference in the Board’s reasons, in which the Board ‘acknowledges the force of the arguments raised by Sergeant Hose on the seriousness of the offence…’. Having reviewed Sergeant Hose’s written and oral submissions, his Honour considered that this statement in the Board’s reasons was ‘a shorthand way’ of the Board acknowledging the public interest considerations raised in those submissions.
Taken in isolation, this statement by the Board does not disclose whether it refers to the seriousness of the offences in relation to the public interest, the interests of the applicant for review, or both. Sergeant Hose’s submissions addressed the seriousness of the offence in relation to both matters. However, the context in which the statement appears in the Board’s reasons, being the preceding paragraphs and the words following the statement, indicates that the Board was considering the interests of the applicant for review, including his prior conduct, his dishonesty, his error of judgment, and consideration of penalties imposed for other like charges. There is nothing to indicate that the Board had regard to any consideration of the public interest, and in particular, the interest of maintaining the integrity of, and community confidence in, the force.
Maintenance of the integrity of, and community confidence in the force, requires consideration of how other members of the police force and the community would expect an officer to behave. These are considerations separate from sentencing considerations. The Board was required to have regard to the effect of Mr Chen’s actions, in not properly storing the small arsenal that he took to the flat, on the integrity of the force and community confidence in it. After all, as Brennan J stated:[41]
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.
[41]Police Service Board v Morris (1985) 156 CLR 397, 412.
In my opinion, those involved in this proceeding before the Board should not have had to delve into written and oral submissions to identify whether the Board had had regard to important relevant considerations. The issues of the integrity of, and community confidence in, the force were of basic importance in the Board’s review. It therefore had to take those matters into account and to give them weight as fundamental elements in making its decision.[42]
[42]R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, 333 (citation omitted).
In some cases, it may be said that a failure to include reference to a matter in a statement of reasons is not necessarily conclusive that a matter was not taken into account.[43] This is not such a case. The onus was on the applicant to establish that the public interest consideration was not had regard to and I am satisfied that he met that onus in this proceeding.
[43]Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 1) [2011] (2011) 180 LGERA 99, 112–3 [44]; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 270 [59].
I respectfully disagree with the learned trial judge. The applicant did establish that the Board failed to have regard to the public interest considerations of maintaining integrity of, and community confidence in, the force. The Board therefore made a jurisdictional error. I would grant leave to appeal and allow the appeal. I would set aside the orders of the trial judge and the Board’s decision and remit Mr Chen’s application for review of the delegate’s decision to the Board for rehearing according to law.
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