Connor v Commissioner of Police - [2004] SASC 258

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CONNOR & ANOR v COMMISSIONER OF POLICE & ANOR
Judgment of The Honourable Chief Justice Doyle
31 August 2004
POLICE - TRIBUNALS AND OTHER AUTHORITIES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
Application pursuant to Supreme Court Rule 63.02 - plaintiffs applied for two prescribed promotional positions in the SA Police - no selection was made for one of these positions - whether plaintiffs are entitled to make an application to the Police Review Tribunal pursuant to s 55(2) of the Police Act for a review of a decision that no selection be made - application dismissed.
Supreme Court Rules 1987 r 63.02; Police Act 1998 (SA) s 10(1), s 53(1), s 54, s 54(1), s 55, s 55(1), s 55(2), s 55(3), s 64; Police Regulations 1999 s 33, s 33(2), s 33(3), s 33(5), s 38, referred to.

CONNOR & ANOR v COMMISSIONER OF POLICE & ANOR
[2004] SASC 258
Civil

DOYLE CJ Mr Connor and Mr Schlein have applied pursuant to Supreme Court Rule 63.02 for a determination of the question of whether they are entitled to make an application to the Police Review Tribunal pursuant to s 55(2) of the Police Act 1998 (SA) (“the Act”). The application each of them has made is for a review of a decision made by the Commissioner of Police (on the advice of a selection advisory committee) (“the committee”) that no selection decision be made in relation to a prescribed promotional position in the South Australia Police (“SA Police”).
Background and legislation
Mr Connor and Mr Schlein are stationed at the Drug and Organised Crime Investigation Branch of SA Police. Mr Connor and Mr Schlein were two of fourteen applicants for two positions of Detective Senior Sergeant in the Branch. These positions are prescribed promotional positions: see s 53(1).
Section 54 of the Act provides:
“54An appointment to a prescribed promotional position may not be made unless selection processes have been conducted in accordance with the regulations for the purpose of filling the position.”
Section 64 of the Act provides:
“64Members of S. A. Police, police cadets and police medical officers must be appointed and promoted in accordance with procedures prescribed by the regulations.”
The Regulations referred to in s 54 and s 64 of the Act are the Police Regulations 1999 (“the Regulations”). Part 8 of the Regulations relates to appointment to promotional positions in SA Police. Regulation 33 sets out the selection process for appointment and relevantly provides as follows:
“33(1) This regulation applies to an appointment to a position in S.A Police of or above the rank of senior constable and of or below the rank of Assistant Commissioner. …
(3)The Commissioner may appoint an advisory committee of at least three persons, one of whom may be the Commissioner, to assist in determining the suitability of applicants to fill the position.
(4)If the Commissioner is a member of the committee, the Commissioner will determine, with the advice and assistance of other members of the committee, which applicant is the most suitable on merit (or, if appropriate, that there is no suitable applicant).
(5)If the Commissioner is not a member of the committee, the committee must determine which applicant is, in the opinion of the committee, the most suitable on merit (or that there is no suitable applicant) and advise the Commissioner in writing accordingly. …”
The positions were advertised in the Police Gazette as required by reg 33(2) and an advisory committee was appointed (presumably by the Commissioner) “to assist in determining the suitability of applicants to fill the position”: reg 33(3). The Commissioner was not a member of the committee.
Mr Connor and Mr Schlein applied for appointment to each of these positions.
Mr Connor and Mr Schlein were two of five applicants short listed by the committee. The committee concluded that only one applicant exhibited a “sufficient degree of merit to warrant a recommendation of suitability for the two positions under consideration”. The committee recommended approval for the selection and promotion of that applicant to one of the two vacant positions, and recommended that the other position be re-advertised. Apparently the Commissioner accepted this advice: reg 33(3) and reg 33(5). A notice was published in the Police Gazette on 11 June 2003. It was accepted that this notice was published by the Commissioner, and that it relates to the positions to which Mr Connor and Mr Schlein had sought appointment. Under the heading “Selections” the notice stated:
“The following selections have been approved for the previously advertised positions.
SENIOR SERGEANT POSITION
1.          Crime Service
             Drug & Organised Crime Investigation Branch
             Investigation Senior Sergeant (2 positions)
             Senior Sergeant
             Position Profile:      DEJ
  SAPG 305/02
             a)        Position Id: BQ*DOIVDEJ02
  Sergeant G D Jeffries No 2646/2
             b)        Position Id: BQ*DOIVDEJ07
  No Selection Made”
The notice went on to deal with other positions.
Section 55 of the Act relevantly provides:
“55(1)    If a member of S.A. Police is selected for appointment to a prescribed promotional position, the Commissioner must give notice of the selection decision in the Police Gazette.
(2)    Subject to subsection (3), when such a notice is given, a member of S.A. Police who was an unsuccessful applicant and is eligible for appointment to the position may apply to the Police Review Tribunal for a review of the selection decision.
(3)    A member may not make an application under subsection (2) unless the person has first made application to have his or her grievance in respect of the selection decision dealt with in accordance with a process specified in the regulations and that process has been completed. …”
The grievance process for a selection decision is set out in reg 38 of the Regulations. Regulation 38 relevantly provides:
“38(1) A member of S. A. Police who is aggrieved by a selection decision notified in the Police Gazette under section 55 of the Act may apply to the Commissioner to have his or her grievance dealt with.
…
(4) The Commissioner must give written notice to the applicant of the Commissioner’s decision on the grievance application within 28 days after receipt of the application (or within such longer period as may be agreed between the applicant and the Commissioner).”
Mr Connor and Mr Schlein say that they lodged a “grievance” with the Commissioner on 25 June 2003. The terms of the “grievance” were not proved. I do not know whether the “grievance” related to both decisions made by the Commissioner or only to the decision to make no selection. In the circumstances, I do not consider that it matters how the “grievance” was expressed.
By memoranda dated 16 September 2003, Commander Angus, the Human Resource Executive, advised Mr Connor and Mr Schlein of the determination made with respect to their “grievance”, stating that the determination was made in “accordance with Regulation 38”. Commander Angus said he had examined the process used by the committee, found it to be appropriate and found no evidence that “the decision” should be overturned. On this basis he confirmed “the decision to appoint Senior Constable Jeffries to the position of Investigations Senior Sergeant DOCIB and a decision of ‘No Selection Made’ for the remaining identical position”. He informed Mr Connor and Mr Schlein that if they were “not satisfied with the outcome of your grievance, you have seven days to lodge an application for review with the Secretary of the Police Review Tribunal”.
Mr Connor and Mr Schlein applied to the Police Review Tribunal (“the Tribunal”) for a review of “a selection decision”. Mr Schlein identified the selection decision as one with respect to each position, that is the appointment of Sergeant Jeffries to the first position, and the decision “no selection made” in relation to the second position. Mr Connor identified the decision as the decision not to select anyone for the second position, referring to the decision as “NO person nominated for this position”.
By letter dated 1 October 2003, the presiding officer of the Tribunal advised Mr Connor and Mr Schlein that he had been advised that the Tribunal’s jurisdiction to review selection decisions was restricted to “those in which a member of SA Police is selected for appointment to a prescribed promotional position”. He said that the Tribunal could deal only with the applications to the extent that they related to the position to which Sergeant Jeffries was appointed and could not consider them in relation to the position for which no selection was made. Mr Connor and Mr Schlein challenge the decision not to consider their application to the Tribunal.
The matter proceeded on the basis that they do not challenge the selection of Sergeant Jeffries, but do challenge the decision that there was no suitable applicant for the second position.
The plaintiffs’ argument
Mr Heywood-Smith QC, counsel for the plaintiffs, submits that under s 55(2) of the Act Mr Connor and Mr Schlein have a right to apply to the Tribunal for a review of the decision made by the Commissioner that no selection be made for the second position.
He argues that notice of a selection decision made with respect to the second position was given in the Police Gazette, that Mr Connor and Mr Schlein were unsuccessful applicants eligible for appointment to that position, and that they have followed the grievance procedure under reg 38 as required by s 55(3). Accordingly Mr Connor and Mr Schlein should be able to apply to the Tribunal for a review of the Commissioner’s decision.
Mr Heywood-Smith submits that s 55(2) confers a right to apply for a review of a “selection decision”. That term is not defined. It is capable of being read to include a decision not to select a person for appointment. Such a decision is, he argues, a “selection decision”. The reference in s 55(2) to “such a notice” being given, that is, notice of a selection decision under s 55(1) is procedural only. It determines when the right of review arises, but does not limit the availability of the right of review to cases in which a person has been selected for appointment. He argues that s 55(2) should to that extent be read independently of subs (1), and that subs (1) is merely procedural and not intended to limit the right of review.
In other words, he argues that the right of review arises under s 55(2), that the right is in relation to a “selection decision”, that that expression includes a decision not to make a selection, and that the right of review is not conditioned on notice of a selection for appointment, the reference in s 55(1) to such a notice being purely procedural.
He submits further that the decision not to make an appointment to the second position was made after the conducting of a selection process contemplated by s 54(1) of the Act, and is a decision made about selection, and notice of that “selection decision” (whether required or not) had been given in the Police Gazette. Mr Heywood-Smith argues that the terms of s 56 and s 57 support such a construction.
He submits that a purpose of the Act is to establish good “management practices”: see for example, s 10(1). The absence of a right of review in the present case would conflict with that purpose. He relies also on the fact that reg 33(5) contemplates a decision that there is no suitable applicant, and submits that the Regulations can be used to assist in the construction of the Act, because of the references to the Regulations in s 54 and in s 55(3). The Regulations treat the decision that there is no suitable applicant as part of the selection process.
Alternatively, Mr Heywood-Smith submits that the two positions are of the same rank, in the same branch, were advertised in the Police Gazette together, and that the same applicants applied for the two positions and were subject to the same selection process. He argues that in these circumstances the selection of Sergeant Jeffries for one of the positions, and notice of that selection, was sufficient to constitute “such a notice” under s 55(2) in relation to each position, and so an unsuccessful applicant can apply for review of the decision to the extent that it applies to the position for which no selection was made.
The defendant’s argument
Mr Grant, counsel for the defendant, submits that s 55(2) applies only to a selection decision that is a selection for an appointment. He relies on the provisions of s 55(1) for that argument, treating it as a condition of substance on the creation of a right of review under s 55(2). He argues also that there would be practical difficulties in the Tribunal reviewing a decision not to make an appointment. The Tribunal could not simply compare the unsuccessful applicant with the successful applicant, (as it would when reviewing a selection for appointment), but would have to undertake a review of all applicants for the position. It would not be appropriate to appoint a successful applicant in such a case (that is one who showed that the decision not to make an appointment was flawed), without reviewing the whole field. It was not in a position to do so. That was the role of the advisory committee. He also argued that the Regulations could not affect the meaning of the Act.
Conclusion
The right to apply to the Tribunal for review of a selection decision under s 55(2) can be exercised “when such a notice is given”, subject to compliance with s 55(3). The term “such a notice” refers to the notice specified in s 55(1), which is notice of a selection decision. It is clear from s 55(1) that the “selection decision” referred to is a decision that a member of SA Police has been selected for appointment. There is an obligation to give notice only if a member is selected for appointment. There is no obligation to give notice of a decision not to make an appointment. There is no requirement in the Act or Regulations that notice be given if no selection is made for a position.
While notice of a decision to make no selection has been given in this instance, it is not a notice that the Commissioner was required to give. It is not a notice for the purposes of section 55(2), hence the right to a review of the decision does not arise.
I am not satisfied that s 55(1) can be treated as purely procedural, and not as limiting the circumstances in which a right of review is conferred. I agree with Mr Heywood-Smith that there is no obvious reason not to confer a right of review in a case like the case before me. I am inclined to agree with him that it would be consistent with good management to provide for a right of review in a case like this, but I realise that there may be practical or management reasons, of which I am unaware, to think otherwise. Considerations of good management, or related to the purpose of the Act, are not strong enough in my opinion to overcome the fairly clear statutory provisions.
I do not accept the submission by Mr Grant that the terms of s 56 and s 57 are inconsistent with the construction advanced by Mr Heywood-Smith. These provisions, regulating the procedure before the Tribunal, are capable of applying to a decision that there is no suitable applicant for a position, although I agree with Mr Grant they refer mainly to a decision to select one applicant rather than another.
There is some force in Mr Grant’s point that the Tribunal, on a review of a decision that no selection be made, is not in a position to survey the whole field, and then to make an appointment. But, as Mr Heywood-Smith pointed out, in such a case the Tribunal could exercise its power under s 57(1)(d) to order that the selection processes be recommenced, either from the outset, or from the point at which the committee had gone wrong.
This is not a case in which the Regulations assist. Granted, reg 33 refers to a decision “that there is no suitable applicant”. But the fact that reg 33 refers to such a decision as a possible outcome does not help one decide what sort of decision attracts the right of review under s 55(2).
In short, I consider that Mr Heywood-Smith’s submissions have a good deal of force. It is surprising that there is no right of review in such a case. But I regard the language of s 55(2) as too clear to be overridden by arguments based on considerations of good management and fairness.
In my view nothing turns on fact that the positions were of the same rank, in the same branch, were advertised together and that the same applicants applied for each position. The two positions are separate positions, and a separate decision was made in relation to each.
If my approach to s 55 is correct, then Mr Connor and Mr Schlein were not entitled to lodge a “grievance” under reg 38 in relation to the decision that no selection be made. Regulation 38 refers to a “selection decision notified in the Police Gazette under section 55 of the Act”. Section 55(1) requires notification only if a member of SA Police is selected for appointment to a prescribed promotional position. It did not require notification of a decision not to make a selection. The fact that the Commissioner (or his delegate) thought that the grievance procedure and consequently the review process was open to Mr Connor and Mr Schlein in this case cannot affect the meaning of s 55.
I am of the opinion that on the proper construction of s 55(2) an unsuccessful applicant may apply for review only of a selection decision that a member of SA Police be selected for appointment.
For those reasons I would dismiss the application.