Jones v Queensland Police Service

[2013] QCAT 1

CITATION: Jones v Queensland Police Service [2013] QCAT 1

PARTIES:	Lynete Joyce Jones (Applicant)
v
Queensland Police Service (Respondent)

APPLICATION NUMBER: OCR357-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Susan Gardiner, Member

DELIVERED ON: 3 January 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application to review filed 29 October 2012 is struck out.

CATCHWORDS:

OCCUPATIONAL REGULATION MATTERS – Where QPS served a notice of suspension in May 2010 – where no decision has been made as to whether any discipline proceedings should be commenced – where review filed alleging inordinate delay; the notice has become manifestly excessive; the grounds for the suspension cannot be sustained; and the failure to make a decision with no reason given amounts to a reviewable decision – where no decision yet made on disciplinary proceedings – where review struck out as misconceived and lacking in substance

Police Service Administration Act 1990, ss 6.1(2), 9.3(1)(d)
Crime and Misconduct Act 2001, ss 219BA, 219G
Queensland Civil and Administrative Tribunal Act 2009, s 47

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Lynette Jones has applied to review a decision she alleges is a failure to make a disiplinary decision by the Queesland Police Service.

2. A notice of suspension under the Police Service Administration Act 1990 was served on Ms Jones dated 7 May 2010. Ms Jones alleges in her review application filed in QCAT on 29 October 2012, inordinate delay by the QPS in failing to take any action under the notice of suspension; that the notice has become manifestly excessive; that the grounds for the suspension cannot be sustained; and that after written requests to exercise the discretion under s 6.1(2) of the PSA Act, the failure to make a decision with no reason given amounts to a reviewable decision under section 219G of the Crime and Misconduct Act 2001.

3. On 30 November 2012 the QPS filed an application to strike out Ms Jones’ review application. The QPS says QCAT has no jurisdiction to review the failure to make a disciplinary decision under section 219G of the Crime and Misconduct Act 2001 because it is not a reviewable decision under that Act.

4. This conclusion is reached by the QPS on the following grounds:

   a) Pursuant to the definition of “reviewable decision” in s 219BA of the Crime and Misconduct Act 2001, QCAT’s jurisidiction is not enlivened until the decision alleges conduct that amounts to misconduct and that so far, there has been no such finding against Ms Jones;

   b) This is so, the QPS says because section 219BA defines decision as “made in relation to a disciplinary allegation of misconduct, if a disciplinary declaration is made, includes the disciplinary declaration” and a disciplinary decision is not a disciplinary declaration as defined by s 219BA.

5. Alternatively, the QPS says that a decision has now been made by Deputy Commissioner Barnett and advised to Ms Jones by letter dated 28 November 2012.

6. The letter of 28 November advises Ms Jones that the Deputy Commissioner will not be proceeding with retiring Ms Jones on medical grounds.  It further says that the discipline investigation is now complete and the Deputy Commissioner anticipates consideration being given to whether any discipline proceedings should be commenced against Ms Jones.

7. It does not appear that a decision has been made on the discipline proceedings; rather a decision has been made on the issue of retiring Ms Jones on medical grounds.

8. In response to the strike out application, Ms Jones says:

   a) Under section 219BA, a reviewable decision means a decision made in relation to an allegation of misconduct (Ms Jones’ emphasis);

   b)    A letter from Assistant Commissioner Martin of 27 July 2012 advises that the suspension will not be revoked as Ms Jones is subject to allegations of misconduct (again Ms Jones’ emphasis);

   c)    A letter of 31 July from Ms Jones drew attention to further material not available to the original decision maker and requested a review of this material by Deputy Commissioner Stewart;

   d) No response was received and a formal request to exercise discretion under s 6.1(2) of the Police Service Administration Act 1990 was made on 19 September 2012;

   e) Ms Jones says a refusal to make a decision under s 6.1(2) of the Police Service Administration Act 1990 to revoke a suspension is also reviewable as the term “decision about …suspicion” is broad enough to encompass a decision about a revocation of a suspension.

   f) A refusal to revoke a suspension under s 6.1(2) is a “final and determinative” decision in that it resolves an actual substantive issue as opposed to a matter of mere procedure and is therefore a reviewable decsion under s 9.3(1)(d) of the Police Service Administration Act 1990 which in turn, makes it reviewable by QCAT.

9. A plain reading of section 219BA of the Crime and Misconduct Act 2001 shows that a reviewable decision is a decision made.  Despite Ms Jones’ arguments, I cannot see a decision made, except one that says the Deputy Commissioner will not be proceeding with retiring Ms Jones on medical grounds.  

10. I accept the information of the letter of 28 November 2012 from Deputy Commissioner Ross Barnett which advises Ms Jones that the Deputy Commissioner will not be proceeding with retiring Ms Jones on medical grounds.  The Deputy Commissioner also advises Ms Jones that the discipline investigation is now complete and he anticipates consideration being given to whether any discipline proceedings should be commenced against Ms Jones. 

11. I assume this will now occur in a timely manner as a considerable period has elapsed since Ms Jones’ first suspension notice and it seems that it is appropriate to soon give Ms Jones some finality.

12. Ms Jones will of course have all the review rights open to her once this decision is made.

13. A striking out application is made under s 47 of the Queensland Civil and Administrative Tribunal Act 2009.  This section allows the Tribunal to strike out an application if it considers a proceeding is misconceived or lacking in substance.  For the reasons given above, until the decision is made as to whether any discipline proceedings should be commenced against Ms Jones, I am satisfied that this current review application is misconceived and lacking in substance.  

14. This review application is struck out.