Johnston v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 159

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Johnston v Commissioner of Police, NSW Police Force [2018] NSWCATAD 159
Hearing dates:	On the papers
Date of orders:	26 July 2018
Decision date:	26 July 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	1. Summons is set aside
Catchwords:	HUMAN RIGHTS – Summons – Privileged document
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Law Enforcement Conduct Commission Act 2016 (NSW) Police Act 1990 (NSW)
Category:	Procedural and other rulings
Parties:	Bradley Johnston (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: V Bulut (Respondent)   Applicant Solicitors: Carroll and O’Dea (Applicant) K & L Gates (Respondent)
File Number(s):	2017/00387558

REASONS FOR DECISION

1. These reasons address whether a summons to produce documents should be set aside. The summons was issued by the Registrar of NCAT at the request of Bradley Johnston on the Commissioner of Police, NSW Police Force (the Summons). Apparently, the key document sought under the Summons is an email sent by Detective Inspector Peter Glynn to the Professional Standards Command on 27 June 2016 about a work meeting he and Detective Inspector Johnston attended on 6 June 2016 (the Email).

2. The substantive issue in these proceedings is whether, as alleged by Detective Inspector Johnston, the Commissioner of Police discriminated against him in the area of employment on the grounds of disability.

3. Both parties made written submissions about whether the Summons should be set aside. Being satisfied that that issue could be adequately determined in the absence of the parties, with the consent of the parties I decided it was appropriate to determine that issue on the basis of the written submissions prepared by the parties, without an oral hearing, as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). In addition, after inviting comment from the parties I took into account the statements of Paul Devaney, 22 June 2018 and Detective Inspector Johnston, 12 March 2018.

4. For the reasons that follow, I have concluded that, by the operation of s 170(1) of the Police Act1990 (NSW), the Email is privileged and therefore the Summons must be set aside.

The scope of the Summons.

5. The Schedule to the Summons describes the documents sought in the following terms:

An extract from the investigation file of the Respondent regarding the investigation of a complaint by the Applicant, Mr Bradley Johnston which investigation arose due to lodging of a complaint by him entitled "Complaint about the conduct of Detective Superintendent Kerrie Lewis, Commander of the Investigations Units Professional Standards Command" on or about 14 June 2016 being any statement or other document provided by Detective Chief inspector Peter Glynn in respect of a meeting which took place on 06 June 2016. The meeting was attended by persons included the Applicant, Detective Superintendent Kerrie Lewis and Detective Chief Inspector Peter Glynn.

6. Self-evidently, the class of documents sought under the Summons is broader in scope than the Email. I will first consider whether the Email falls within s 170(1) of the Police Act and then address whether the balance of the documents described in the Summons also fall within this provision.

Does the Email fall within s 170(1) of the Police Act?

7. Section 170 of the Police Act states:

(1) A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings:

(a) that concern the conduct of police officers, and

(b) that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action.

(2) Subsection (1) does not apply to or in respect of:

(a) a document comprising a complaint, or

(b) a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or

(c) a document that a witness is willing to produce.

(3) Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.

8. The Commission contends that the Email falls within s 170(1) of the Police Act because it was brought into existence for the purposes of Part 8A of that Act and none of the exceptions to s 170 apply. Detective Inspector Johnston disagrees and asserts that the Commission has not adduced evidence to support the proposition that the Email was brought into existence for the purposes of Part 8A of the Police Act.

9. In a letter of response to the President of the Anti-Discrimination Board dated 8 September 2017, the Commissioner gave the following background which I do not understand to be in dispute.

10. On his return to work on 6 June 2016 after a period of sick leave, Detective Inspector Johnston met with his supervisor, Detective Superintendent Kerrie Lewis and was requested to provide a medical certificate.

11. Later that day, at a management meeting attended by Detective Inspector Johnston, Detective Superintendent Lewis, Chief Inspector Glynn and others, the advertisement for a coordinator position within the Technical Support Unit of the Professional Standard Command (the Coordinator position) was discussed. At that meeting, Detective Superintendent Lewis said to Detective Inspector Johnston words to the effect “I know you have previously expressed an interest but you don’t have the qualifications and with your recent sick leave I don’t think it would be a good idea”.

12. Detective Inspector Johnston submitted an expression of interest for the Coordinator position. He was not appointed to the position.

13. On 14 June 2016, Detective Inspector Johnston lodged an internal complaint with the Professional Standard Command. The complaint is set out in a document headed “Complaint about the conduct of Detective Superintendent Kerrie Lewis, Commander of the Investigation unit, Professional Standards Command”.

14. In a statement filed in these proceedings dated 22 June 2018, Detective Superintendent Devaney wrote that in late June 2014 he was allocated the complaint made by Detective Inspector Johnston , which he characterised as an “allegation of harassment and discrimination alleged to have occurred on 6 June 2018”. He wrote that in the course of investigating that complaint he requested Chief Inspector Glynn to give an account of the meeting on 6 July 2016. Chief Inspector Glynn responded to that request by email on 27 June 2016. This is the email requested under the Summons.

Does the internal complaint constitute a “misconduct matter”?

15. Central to the question of whether the Email attracts the privilege afforded by s 170(1) of the Police Act is the nature of the internal complaint made by Detective Inspector Johnston about Detective Superintendent Lewis (the internal complaint), specifically whether, as asserted by the Commissioner, it constitutes a “misconduct matter”, that is, an “allegation of police misconduct”.

16. Detective Inspector Johnston disagrees. He argues that the internal complaint cannot be described as an allegation of police misconduct. In addition, he submits that there is no evidence that the Commissioner has treated the internal complaint as a “misconduct complaint”.

17. Headed “Complaints about conduct of police officers, administrative employees and the NSW Police Force”, Part 8A applies “to and in respect of a misconduct matter concerning the conduct of a police officer … received by the Commissioner or of which the Commissioner becomes aware”: s 122. Part 8A is subject to the Law Enforcement Conduct Commission Act 2016 (NSW): s 123.

18. Part 8A of the Police Act defines "complaint" to include an allegation that “any conduct of … a police officer (whether or not named or identified) is (or could be) conduct that falls within the description of police misconduct or officer maladministration …”: s 121(1) of the Police Act.

19. The Law Enforcement Conduct Commission Act lists examples of police misconduct, which include “conduct by a police officer that constitutes unlawful conduct (not being a criminal offence or corrupt conduct)”: s 9(4).

20. The Anti-Discrimination Act 1977 (NSW) (the Act) makes it unlawful for an employer to discriminate against an employee on the grounds of disability in the area of employment: s 49D(2). An act done by a person as the employee of the person's employer which, if done by the employer would be a contravention of the Anti-Discrimination Act, is taken to have been done by the employer also unless the employer did not, either before or after the doing of the act, authorise the employee, either expressly or by implication, to do the act: s 53. It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of the Anti-Discrimination Act: s 52.

21. If found proven, the alleged conduct the subject of the complaint lodged by Detective Inspector Johnston with the President of the Anti-Discrimination Board and subsequently referred by the President to NCAT, could amount to a contravention of s 49D(2) of the Anti-Discrimination Act by the Commissioner. By the operation of s 52 of the Anti-Discrimination Act, if it is found that Detective Superintendent Lewis caused or permitted the conduct found to amount to a contravention of s 49D(2) of the Anti-Discrimination Act, her conduct might also be unlawful for the purposes of the Anti-Discrimination Act.

22. There is significant overlap between the conduct the subject of the internal complaint and the conduct the subject of the complaint made by Detective Inspector Johnston to the President of the Anti-Discrimination Board. It follows, subject to the discussion below, that the internal complaint constitutes a complaint alleging unlawful conduct by Detective Superintendent Lewis and amounts to a “misconduct matter” within the meaning of s 121 of the Police Act.

The alleged failure to comply with Divisions 4, 5 and 6 of Part 8A point

23. Detective Inspector Johnston submits that there is no evidence that the Commissioner has treated the internal complaint as a “misconduct matter” and complied with the requirements of Divisions 4, 5 and 6 of Part 8A.

24. Part 8A requires the Commissioner to do a number of things once a complaint of police misconduct is made. In certain circumstances, these include notifying the Law Enforcement Conduct Commission of the complaint (s 130(2)) and deciding whether to investigate the complaint (s 131(1)).

25. The available material does not disclose whether the Commissioner has or has not complied with each of the obligations imposed by Divisions 4, 5 and 6 of Part 8A. However, in my view, that is irrelevant to the proper characterisation of the internal complaint. There is nothing in Part 8A to suggest that a complaint will only constitute a misconduct matter if those requirements are complied with.

Was the Email brought into existence for the purposes of Part 8A of the Police Act?

26. The Commission contends that the Email was brought into existence for the purposes of Part 8A of the Police Act. Detective Inspector Johnston disagrees.

27. In a statement filed in these proceedings dated 22 June 2018, Detective Superintendent Devaney wrote that in late June 2016 he was allocated a “police complaint investigation” which he described as being an “allegation of harassment and discrimination alleged to have occurred on 6 June 2018”. He wrote that, in the course of that investigation, on 26 July 2016, he sent an email to Chief Inspector Glynn requesting an account of the meeting on 6 June 2016. Chief Inspector Glynn responded to the email on 27 June 2016. As noted, that is the email requested under the Summons.

28. The investigation conducted by Detective Superintendent Devaney was an investigation of a misconduct matter. It follows that his email requesting Chief Inspector Glynn to give an account of that meeting and Chief Inspector Glynn’s response were each brought into existence for the purposes of Part 8A of the Police Act.

Do any of the exceptions in s 170(2) apply?

29. Section 170(1) is subject to the three exceptions listed in s 170(2). Only one appears to be relevant: a document that a witness is willing to produce. In a direction hearings, it was asserted for Detective Inspector Johnston that Chief Inspector Glynn consents to producing the Email. I understand that that submission has been abandoned. In an email to the Professional Standards Command sent on 6 June 2018, Chief Inspector Glynn wrote that he did not consent to the Email being produced to the Tribunal in these proceedings.

30. It follows that by the operation of s 170 of the Police Act, the Email would not be admissible in these proceedings.

The scope of the Summons

31. The class of documents sought under the Summons is broad in scope and includes “any statement or other document provided by DCI Glynn in respect of a meeting on 6 June 2016”. On the available material it is not possible to say whether other documents exist which fall within the scope of the Summons and, if so, whether they fall within s 170 of the Police Act. That is a matter of fact and will turn on whether the subject document was brought into existence for the purposes of Part 8A of the Police Act.

Decision

32. As the Email would not be admissible in these proceedings the Summons must be set aside.

Order

1. Summons is set aside

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 26 July 2018