Kerley v Police Registration and Services Board
[2019] VSC 805
•9 December 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 01641
| MICHELLE KERLEY | Plaintiff |
| v | |
| POLICE REGISTRATION AND SERVICES BOARD | First Defendant |
| - and - | |
| GRAHAM ASHTON (in his capacity as Chief Commissioner of Police) | Second Defendant |
| - and - | |
| RICHARD DAWSON | Third Defendant |
| - and - | |
| SUSAN LANDY | Fourth Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 August 2019 |
DATE OF JUDGMENT: | 9 December 2019 |
CASE MAY BE CITED AS: | Kerley v Police Registration and Services Board |
MEDIUM NEUTRAL CITATION: | [2019] VSC 805 |
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JUDICIAL REVIEW – Decision of Police Registration and Services Board – Appointment of person not a serving police officer to Victoria Police – Whether also an appointment to a particular position – Whether unsuccessful police officers applicants for position had right of appeal – No right of appeal – Victoria Police Act 2013 ss 4, 27, 30, 33, 34, 141, 146.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E White | Tony Hargreaves & Partners Lawyers |
| For the First Defendant | Mr G Kerr (solicitor) | Russell Kennedy |
| For the Second and Fourth Defendants | Mr M Follett | Clayton Utz |
HIS HONOUR:
Ms Michelle Kerley, who is a Detective Sergeant with Victoria Police, seeks judicial review of a decision of the first defendant, the Police Registration and Services Board (‘the Board’), that it had no jurisdiction to hear appeals against the appointment of Ms Susan Landy, the fourth defendant and a former police officer, to a position[1] in Victoria Police. The appeals were lodged by the plaintiff, Ms Michelle Kerley, and the third defendant, Mr Richard Dawson, serving police officers who had also applied unsuccessfully for the appointment.
[1]To use the term used in the Police Gazette advertisement.
Ms Kerley now seeks an order in the nature of certiorari quashing the Board’s decision and an order in the nature of mandamus compelling it to rehear the appeal and determine it according to law.
The first defendant adopted a Hardiman appearance, while the third defendant chose not to appear at the hearing. On occasions, I refer to the second and fourth defendants as the defendants.
Appointment
The appointment that has given rise to this proceeding was of Ms Landy to the position of Senior Supervisor within Victoria Police’s People Development Command. The position was advertised in the Police Gazette on 12 November 2018 at the rank of Senior Sergeant. Detective Sergeant Kerley, Ms Landy and Sergeant Dawson each applied for the position.
Ms Kerley and Mr Dawson were both members of Victoria Police at the time of their applications. Ms Landy was a former member of Victoria Police, and was recorded on the Police Profession Register kept pursuant to s 121 of the Act. Therefore, despite not being a current police officer, she was eligible to be appointed in accordance with s 30(2) of the Act.
Ms Landy was the successful applicant. She was informed of her success by letter of 21 December 2018, which advised her that:
Congratulations, your application for employment with Victoria Police has been successful.
This letter sets out the specific terms and conditions of your employment with Victoria Police. It is important that you review the contents carefully, as you are requested to sign this document in acknowledgement of your understanding and acceptance of the offer.
Commencement and Appointment
You will commence employment on Monday 14 January 2019 at 9:00am and you will be appointed as a police officer at the rank of Senior Sergeant.
Training requirements
…
Employment Arrangements
The condition of your employment with Victoria Police is pursuant to:
·Victoria Police Enterprise Agreement 2015 (The Agreement)
·Victoria Police Act 2013
·Victoria Police Regulations 2014
·Signing of the Deed of Confidentiality
·Signing of the Privacy Collection Statement
·Reading and acknowledging the Student Handbook and Course Guide.
…
Placement
You will be appointed to Position No. 20018204, with initial duty at Centre for Law and Operational Development located at 1 View Mount Road, Glen Waverly Victoria, 3150, for a period of not less than two (2) years from the date of your appointment. This will be your usual place of employment, however you may be required to undertake duties at other locations; parameters are described within The Agreement.
Salary
…
Probationary Period
In accordance with the Victoria Police Act 2013 Section 28, you will be subject to a 12 month probationary period from the date of your appointment.
Transfer and promotion
At the conclusion of your probation period and any time in position requirements, you will be eligible to apply for transfer and promotion in accordance with the Victoria Police Transfer and Promotion Policy.
Acceptance of offer
…
A further letter advised that her letter of offer had been amended, and that her employment would instead commence on 22 January 2019.
On 21 January 2009 the following appeared in the Police Gazette:
APPOINTMENT
In accordance with the Victoria Police Act 2013, the following appointment/s have been made.
Name Employee No Reg. No Advertised Position Location SENIOR SERGEANT
Landy, S.G.008836 26668 12.11.2018 SEN
SUPVSSR
20018204CTRE 4 Law & Op Dev
The sections of the Act relevant to Ms Landy’s appointment are extracted below:
3 Definitions
(1) In this Act—
efficiency, in relation to the promotion or transfer of police officers or protective services officers, has the meaning given in section 4;
police officer means—
(a) the Chief Commissioner; or
(b) a Deputy Commissioner; or
(c) an Assistant Commissioner; or
(d) a person appointed under Division 5 of Part 3;
rank means—
(a)in relation to a police officer, a rank specified in section 13;
(b)in relation to a protective services officer, a rank (if any) prescribed in the regulations;
4 Meaning of efficiency
(1)For the purposes of the promotion or transfer of police officers to a position or rank referred to in column 2 of an item in the following table, efficiency has the meaning given in column 3 of that item.
Column 1
ItemColumn 2
Position or rankColumn 3
Meaning of efficiency1 All positions The aptitude and special qualifications necessary for the discharge of the duties of the position in question, together with merit, diligence, good conduct, quality of service, mental capacity and physical fitness 2 Rank of inspector In addition to item 1, the potential to develop the executive ability and leadership and management skills essential in senior executive positions 3 Rank of commander, chief superintendent, superintendent or chief inspector In addition to item 1, the executive ability and leadership and management skills essential in senior executive positions
27 Appointment of police officers
(1)Subject to section 15, the Chief Commissioner may appoint a person as a police officer below the rank of Assistant Commissioner.
Note
Section 15 enables the Governor in Council to determine the total number of police officers and the total number of police officers of each rank.
(2)Subject to subsection (3), the Chief Commissioner may appoint a person under this section only if the person satisfies the prescribed criteria for appointment.
(3)The Chief Commissioner, in exceptional circumstances, may waive any of the prescribed criteria for appointment in any particular case.
(4) Subject to subsection (5), an appointment under this section—
(a) may be on a full-time or part-time basis; and
(b) may be for a fixed term or on an ongoing basis.
(5)An appointment under this section may be made on a part-time basis or for a fixed term (or both) only if the Chief Commissioner is satisfied that it is necessary to do so for the purposes of—
(a) a specific project or task force of finite duration; or
(b)dealing with an emergency within the meaning of the Emergency Management Act 1986.
(6)The instrument of appointment must specify the rank at which the person is appointed.
…
29 Appointment of officers from other jurisdictions
(1) This section applies to the appointment under section 27 of a person who—
(a) has never been a police officer; and
(b) is or has been an officer or member of a police force of another jurisdiction.
(2) The Chief Commissioner may request the PRS Board to advise the Chief Commissioner in writing whether the person—
(a) either—
(i) meets the prescribed criteria for appointment at the proposed rank; or
(ii) subject to the satisfactory completion of training specified by the PRS Board, will meet the prescribed criteria for appointment at the proposed rank; and
(b) has the aptitude and efficiency to perform the duties of a police officer at the proposed rank.
(3) Subject to section 222(3), the PRS Board must comply with a request under subsection (2).
Note
The functions of the PRS Board under this section are performed by the Registration Division. Division 4 of Part 12 gives certain investigatory powers to the PRS Board for the purposes of providing advice under this section. Under section 222(3) the PRS Board may decline to provide advice in certain circumstances.
(4) The Chief Commissioner must consider the advice of the PRS Board in determining whether to appoint the person under section 27 and in determining the rank at which and position to which he or she is appointed.
30Appointment of former police officers
(1)This section applies to the appointment to Victoria Police of a person who has previously been a police officer.
(2)The Chief Commissioner may appoint the person under section 27 if the person is registered on the Police Profession Register.
(3)If the person is not registered on the Police Profession Register, the Chief Commissioner may request the PRS Board to advise the Chief Commissioner in writing whether the person—
(a)either—
(i)meets the prescribed criteria for appointment at the proposed rank; or
(ii)subject to the satisfactory completion of training specified by the PRS Board, will meet the prescribed criteria for appointment at the proposed rank; and
(b)has the capabilities to perform the duties of a police officer at the proposed rank.
(4)Subject to section 222(3), the PRS Board must comply with a request under subsection (3).
Note
The functions of the PRS Board under this section are performed by the Registration Division. Division 4 of Part 12 gives certain investigatory powers to the PRS Board for the purposes of providing advice under this section. Under section 222(3) the PRS Board may decline to provide advice in certain circumstances.
(5)If the PRS Board's advice has been requested under this section, the Chief Commissioner must consider the advice in determining whether to appoint the person under section 27 and in determining the rank at which and position to which he or she is appointed.
31Promotion of police officers
(1)Subject to section 15, the Chief Commissioner may promote a police officer appointed under section 27 to a higher rank in accordance with this Act and the regulations.
Note
Section 15 enables the Governor in Council to determine the total number of police officers of each rank.
(2)In determining a promotion, the Chief Commissioner—
(a)must have regard to the efficiency of the candidate for promotion; and
(b)if there is more than one candidate for promotion—
(i)must have regard to their relative efficiencies; and
(ii)subject to subsection (3), must not have regard to their relative seniority.
(3)The Chief Commissioner must have regard to the relative seniority of candidates for promotion to the rank of senior sergeant, sergeant or senior constable if the Chief Commissioner considers that the candidates are equally efficient.
(4)Subsection (2) does not apply to—
(a)a promotion to a position of senior constable (general duties); or
(b)a promotion of a constable who holds a position to the rank of senior constable in the same position.
(5)The Chief Commissioner must cause notice of the selection of a police officer for promotion to be published in the Police Gazette.
33Transfer of police officers
(1)The Chief Commissioner may transfer a police officer in accordance with this Act and the regulations.
(2)Without limiting the Chief Commissioner's powers to transfer a police officer, the Chief Commissioner may do any of the following—
(a)transfer a police officer on application or request under section 34;
(b)make a directed transfer under section 35;
(c)transfer a police officer under Division 6 of Part 4;
(d)transfer a police officer under Division 1 or 2 of Part 7.
34Transfer on application or request
(1)The Chief Commissioner may transfer a police officer to another position at the same rank on application or request by the officer.
(2)In determining a transfer under this section, the Chief Commissioner—
(a)must have regard to the efficiency of the candidate for transfer; and
(b)if there is more than one candidate for transfer—
(i)must have regard to their relative efficiencies; and
(ii)subject to subsection (3), must not have regard to their relative seniority.
(3)The Chief Commissioner must have regard to the relative seniority of candidates for transfer to a position in the following ranks if the Chief Commissioner considers that the candidates are equally efficient—
(a)senior sergeant;
(b)sergeant;
(c)senior constable;
(d)constable, if the position is the position of constable (general duties).
(4)Subsection (2) does not apply to—
(a)a transfer to a Metropolitan position of constable (general duties) or senior constable (general duties); or
(b)a transfer made under an expression of interest process agreed under an industrial instrument applying to police officers.
(5)The Chief Commissioner must cause notice of the selection of a police officer for transfer under this section to be published in the Police Gazette.
(6)This section does not apply to a Deputy Commissioner or an Assistant Commissioner.
141Promotion and transfer appeals—police officers
(1)Subject to this section and the regulations, a police officer may appeal to the PRS Board against the selection of another police officer for promotion under section 31 or transfer under section 34 if—
(a)the officer applied for promotion or transfer to the position; and
(b)the officer considers, on the grounds referred to in subsection (4), that he or she has a better claim to promotion or transfer than the officer selected.
Note
The functions of the PRS Board in relation to appeals are performed by the Review Division.
(2)A police officer cannot appeal in relation to—
(a)a promotion or transfer to a position at the rank of superintendent, chief superintendent or commander; or
(b)a transfer to a Metropolitan position of constable (general duties); or
(c)a promotion to a position of senior constable (general duties); or
(ca)a transfer to a Metropolitan position of senior constable (general duties); or
(d)the promotion of a constable who holds a position to the rank of senior constable in the same position; or
(e)a transfer made under an expression of interest process agreed under an industrial instrument applying to police officers.
(3)A police officer cannot appeal under this section if he or she has lodged an appeal under this section on 4 or more occasions in the current financial year—
(a)whether or not in relation to the same position; and
(b)whether or not any of those appeals were successful, unsuccessful or withdrawn.
(4)The only grounds for appeal are—
(a)in relation to the rank of senior sergeant, sergeant or senior constable—
(i)superior efficiency; or
(ii)equal efficiency and greater seniority;
(ab)in relation to the rank of constable, if the position is the position of constable (general duties)—
(i)superior efficiency; or
(ii)equal efficiency and greater seniority;
(b)in relation to the rank of inspector or chief inspector—superior efficiency.
(5)An appeal must be lodged within 3 days after the day on which notice of the selection is published under section 31(5) or 34(5).
Appeals to the Board
The Board was established by s 87 of the Police Regulation Act 1958 (‘the 1958 Act’), and continues in existence as a corporate entity under s 201 of the Act. Its functions are stated at s 202, the most relevant of which – the power to hear and determine appeals under the Act – is contained in s 202(1)(c)(i). One such avenue of appeal is under s 141, which provides that:
(1)Subject to this section and the regulations, a police officer may appeal to the PRS Board against the selection of another police officer for promotion under section 31 or transfer under section 34 if—
(a)the officer applied for promotion or transfer to the position; and
(b)the officer considers, on the grounds referred to in subsection (4), that he or she has a better claim to promotion or transfer than the officer selected.
Ms Kerley and Mr Dawson lodged appeals in a form entitled ‘Appeal against non– selection for a vacancy’ on 22 and 23 January 2019. As the Board explained in directions given on 25 January 2019 and restated in its decision:
These applications for appeal are unusual in that they relate to the employment of a person who was not a serving police officer, but had been registered on the Police Profession Register under Part 6 of the Victoria Police Act 2013. Victoria Police has indicated its position is that there are no appeal rights under section 141, as this was an appointment made under section 27 rather than a selection of an existing police officer in relation to which an appeal can be brought under section 141.
This means there is a threshold jurisdictional question about whether the appeals are able to be brought at all under section 141 of the Act.
(in short, section 141 allows for an appeal to be brought by a police officer “against the selection of another police officer”. The initial question is whether this was a “selection of another police officer” or whether it was the appointment of a person to become a police officer, at the rank of senior sergeant, under section 27.)
Ms Kerley and Mr Dawson argued, through submissions by the Police Association, that there was an essential difference between appointing a person to a rank in Victoria Police and transferring them to a position at that rank. Accordingly, Ms Landy had to be appointed as a police officer before being transferred to a particular position and, therefore, her selection to be transferred or promoted to that position was ‘the selection of another police officer’ within the meaning of s 141. Her appointment could therefore be appealed.
Victoria Police and Ms Landy, on the other hand, argued that she was appointed to a particular position at the same time as she was appointed to a rank. Therefore, that selection was not the selection of ‘another police officer’, as Ms Landy was not a police officer before her appointment to that particular position. Further, there was no ‘transfer’ or ‘promotion’ under ss 31 or 34, as she was appointed to the position under s 27, and there was no need to be transferred into it via a separate step. Therefore, no appeal was available under s 141.
These submissions are explained in more detail below, as the parties’ submissions to this Court overlapped considerably with those put to the Board in its determination of the threshold jurisdictional question.
Ultimately, the Board decided the threshold question against Ms Kerley and Mr Dawson. It decided that Ms Landy was appointed to a rank and position simultaneously, and that there was therefore neither a ‘promotion under s 31 or transfer under s 34’ nor was she ‘another police officer’, and that there was therefore no right of appeal under s 141.
The Board decided that:
I am satisfied that Ms Landy was appointed as a Senior Sergeant of Police under section 27 directly to the vacant PDC position (Position SENSUPVSR 20018204) without the use of any other head of power.
Accordingly, I find the decision to appoint her is not subject to appeal under section 141.
This means the appeal notices lodged by Sergeants Kerley and Dawson will not be regarded as appeals for the purpose of the Act (including for the limit on the number of appeals each year).
Of importance in the Board’s decision were ss 29 and 30, which deal with the appointment of former police officers and police officers from other jurisdictions. Section 29(4) states:
The Chief Commissioner must consider the advice of the PRS Board in determining whether to appoint the person under section 27 and in determining the rank at which and position to which he or she is appointed.
Section 30(5) states:
If the PRS Board's advice has been requested under this section, the Chief Commissioner must consider the advice in determining whether to appoint the person under section 27 and in determining the rank at which and position to which he or she is appointed.
The Board found that these provisions clearly showed that the power under s 27 could be used to appoint a person to a particular rank and to a particular position simultaneously. This meant that there was no need to first appoint a person to a rank under s 27 and subsequently transfer them to a position under s 34.
It also considered s 31, which deals with the ‘promotion of a police officer to a higher rank’, and which requires the use of a ‘relative efficiency’ criterion to choose between different candidates. ‘Efficiency’ is defined in s 4, which I have set out previously, within a table which is described as being ‘[f]or the purposes of the promotion or transfer of police officers to a position or rank’, and whose contents refer to ‘the aptitude and special qualifications necessary for the discharge of the duties of the position in question’.
The Board also noted practical difficulties with the two stage-appointment process advanced by Ms Kerley and Mr Dawson. These included that a person could be appointed to a rank and then, if they were either unsuccessful in securing a transfer or if a transfer were successfully challenged, left in ‘limbo’ with a rank, salary and benefits and forming part of the capped number of police officers at that particular rank – but without a position and without, therefore, any duties to perform. It also considered s 27(5), which allows short-term appointments and concluded that in practical terms this contemplated appointments being made to particular positions.
Judicial Review application
Ms Kerley relied upon the following grounds in support of her judicial review application:
1.The First Defendant mistakenly denied its jurisdiction to hear and determine the appeals made to it by the Plaintiff and Third Defendant.
2.The First Defendant misapprehended its powers under the Victoria Police Act 2013.
The plaintiff’s submissions
Ms Kerley reiterated her key contention before the Board: that the decision to appoint Ms Landy as a member of Victoria Police was ‘a precursor to and separate from’ the decision to appoint her to her particular position within Victoria Police. The appointment to that particular position was achieved not by s 27, but by way of transfer under s 34,[2] and was therefore amenable to appeal under s 141.
[2]Section 33 also contains a transfer power, but no appeal is available from a transfer under it.
Ms Landy became a police officer pursuant to a decision made under s 27, which was therefore limited, by the terms of that section, to her appointment as an officer at a particular rank but not to a position. That appointment under s 27 was facilitated by the provisions of s 30. Once appointed as a police officer, the Chief Commissioner was able to transfer her to a position. The appointment power was limited and could not be used to appoint to specific positions, which power was contained elsewhere instead.
Ms Kerley submitted that the structure of the Act contained a clear distinction between appointment as a police officer and the subsequent management of that police officer’s appointment. Appointing a police officer to a position formed part of the managerial powers of the Chief Commissioner. Once a person was appointed as a member of Victoria Police they were then subject to the direction and control of the Chief Commissioner, whose powers also included promotion and transfer. Ms Landy was appointed separately as a member of Victoria Police to a particular rank independent of her position.
After a person was appointed as a member of Victoria Police, they could be transferred to a position at that rank, as Ms Landy had been. That transfer could then be appealed. The terms and structure of her appointment letter supported this construction.
Sections 29 and 30, though relevant, were not separate heads of power, but rather ‘facilitative provisions’ that guided the exercise of the power under s 27 but did not confer a separate power for lateral appointment.
Ms Kerley relied upon extensive extrinsic materials leading to the current legislation to support her submissions including:
(a) Issues Paper No 1 of April 2010, which noted that the barriers preventing Victoria Police from recruiting via lateral transfers were historical and policy-based rather than legal, and that those barriers could be removed in order to attract and retain skilled officers;
(b) A report titled Enabling a Flexible Workplace for Policing in Victoria, September 2011, which noted the benefits of lateral entry arrangements in organisations with high growth, and detailed the significant impediments, all non-legislative in nature, facing experienced applicants seeking to permanently join Victoria Police;
(c) The Executive Summary of the report of the Inquiry into the Command, Management and Functions of the Senior Structure of Victoria Police, which noted two areas of workplace inflexibility in Victoria Police – the inability to use lateral transfers to recruit experienced officers from other jurisdictions, and the time consuming nature of the appeal rights given to officers against unfavourable transfers or promotions;
(d) The substantive part of the above report, which explained that the Chief Commissioner’s power to make lateral transfers and to reappoint former officers at their former rank were restricted by Victoria Police’s Mobility Policy and Transfer and Promotion System Policy, both of which were given legal effect by a 2007 Deed of Agreement between the Chief Commissioner and the Police Association;
(e) The Memorandum of Understanding reached between the Chief Commissioner and the Police Association as part of negotiations towards the signing of an enterprise agreement in 2011, which referred to the proposed lateral entry amendments to the 1958 Act and secured a number of reforms in relation to them, such as the creation of the Board;
(f) The second reading speech to the Police Regulation Amendment Bill 2012, which noted that the 1958 Act would be amended to give effect to the above memorandum of understanding, and which noted the establishment of the Police Profession Register, the Board, and the separate appeals and review framework relevant to the Board; and
(g) The explanatory memorandum to the Victoria Police Bill 2013, which noted that ss 9 and 9A of the 1958 Act were to be re-enacted as ss 29 and 30 of the Victoria Police Act 2013.
Ms Kerley submitted that the power to appoint under s 27 was limited to rank, and the Act clearly upheld a conceptual distinction between an appointment to a rank and a transfer to a particular position. The decision of the Board that appointments under s 27 included appointments to particular positions was inconsistent with the limited power which that section contained and the express power given elsewhere in respect of transfers and promotions. Ms Kerley contended that this two-step procedure was followed in practice, as evidenced by the terms of the letter received by Ms Landy, and in the gazetting of her appointment, a gazetting which Ms Kerley submitted was required for transfers and promotions but not appointments. Ms Landy was appointed as a member of Victoria Police to a particular rank independent of her position. An application for a particular position amounted to a request to be transferred to that position.
Addressing the defendant’s argument that the plaintiff’s interpretation could result in a police officer being left in ‘limbo’, Ms Kerley argued that it was difficult to contemplate how a person could be appointed within the staff limits determined by the Governor in Council and then have no work to do.
Ms Kerley argued that the term ‘position’ in the Act was used in an ambulatory manner. It could mean holding the office of Constable, as recognised by s 146, as well as having a particular job, post or set of duties. The meaning of the word changed depending on its location and purpose within the Act, and that meaning could sometimes encompass ‘rank’ as it did in s 27. In making this argument Ms Kerley referred to s 146(1)(c), which gives a police officer a right of review, by the Board, of the Chief Commissioner’s decision:
(c)that the officer is unsuitable for promotion to a position of senior constable (general duties); or
Ms Kerley relied on the long-standing rights of police officers to appeal against promotion decisions unfavourable to them. These rights had existed since at least 1947 and were retained in the 1958 consolidation. They were further refined by amendments in 1962 and then codified by the Police Regulation (Further Amendment) Act 1990. In particular, she submitted that the legislative provisions allowing lateral entry to the police force were ‘independent of but co-existent with’ the amendments regarding appeals, that these were not intended to be exclusive of each other, and that, accordingly, the lateral entry provisions should not be read so as to exclude that established right to appeal.
Therefore, to the extent that the Board’s decision had the effect of repealing or abolishing appeals in respect of non-selection to a position, it was inconsistent with the rights of appeal which had existed since 1947. Further supporting her interpretation was the fact that the amendments to the Act incorporating the facilitative provisions were consequent upon a Memorandum of Understanding in which appeals and lateral appointments were dealt with separately.
Ms Kerley also disputed a number of the Board’s specific conclusions. She stated that in its analysis the Board had conflated the specific power in s 27(5) with the general power in s 27(1). Section 27(5) did not extend the power in s 27(1) to appoint a person as a police officer. She also argued that ss 30(5) and 29(4) clearly contemplated appointment as police officers and no more. This interpretation was consistent with letters received by Ms Landy and the gazetting of her successful attainment of position, which is only required for promotions or transfers, not appointment as member. The reference in s 30(5) to the ‘position to which he or she is appointed’ was not an empowering provision, but merely the imposition of an obligation on the Chief Commissioner to consider the Board’s advice when he or she had requested it. Section 30(3), (4) and (5) did not apply to the appointment of Ms Landy.
Engaging with the Board’s arguments based on the definition of the word efficiency, Ms Kerley argued that the power in s 31 to promote was distinct from the power to transfer. Further, the efficiencies to which the Chief Commissioner was obliged to have regard in determining the promotions referred to in s 31(2) and defined in s 31(3) and (4) were not efficiencies dependent upon holding a current position in Victoria Police. Finally, she stated that even in the event that an officer was indeed left ‘in limbo’, they would still at least retain their rank.
The Second and Fourth Defendants’ submissions
The defendants also repeated their main arguments before the Board, and relied on the Board’s conclusions. They advanced six key contentions.
First, they argued that the plaintiff, to succeed, had to show that the Act itself drew the sharp distinction between appointment to a rank and transfer to a position. But this distinction was disproved by s 30(5) which, being the section that dealt with lateral transfers, was the most relevant to Ms Landy’s appointment. Section 30(5) stated clearly that the power to appoint under s 27 was to both a position and a rank. Whether s 30 was facilitative in nature or not, it was an important contextual consideration which shed light on the nature of the operative power contained in s 27. ‘Rank’ and ‘position’ were not always used in the Act in a way that indicated they were separate steps, as could be seen in ss 29(4) and 30(5). Those provisions contemplated that when the Chief Commissioner appointed someone under s 27 he did two things: he appointed the person to a rank, and to a position at the same time. Whether facilitative or not, meaning had to be given to these provisions, and if anything they, as more specific provisions, would prevail in any conflict of interpretation with more general provisions.
This was especially important given that, if the Chief Commissioner had requested the Board’s advice under s 30(3), then he would have been compelled as a mandatory consideration under s 30(5) to ‘consider the advice in determining whether to appoint the person under section 27 and in determining the rank at which and position to which he or she is appointed’. Therefore, under the plaintiff’s interpretation, the Chief Commissioner could be compelled by s 30(5) to consider the position to which an applicant would be appointed, despite not being empowered to do so under s 27.
Secondly, s 34(1), under which the plaintiff alleged that Ms Landy was transferred, could not have been used to do that, because Ms Landy had no position prior to her appointment and s 34(1) only empowers transfers ‘to another position at the same rank’. In order for s 34 to operate, the person who is to be transferred must already hold a position.
Thirdly, they pointed to the essential similarities between s 27 and s 31, both of which speak only of ‘appointment’ or ‘promotion’ to a particular rank. Accordingly, if s 27 could not be used to appoint a person to a position, but rather only to a rank, then neither could s 31. Section 31(1), which deals with promotion, provides for people to be appointed to a higher rank. Assuming consistency with s 27, the plaintiff’s argument could not allow this section to be used to promote a person to a particular position at that rank as well. Yet s 31 could definitely be used to appoint a person to a particular position. Promotions were determined on the basis of ‘efficiency’, after all, and the definition of efficiency in s 4 made it clear that efficiency is to be determined in part with respect to particular positions. The only criterion for promotion is ‘efficiency’, which is defined in s 4 to refer to ‘all positions’ and as ‘The aptitude and special qualifications necessary for the discharge of the duties of the position in question, together with merit, diligence, good conduct, quality of service, mental capacity and physical fitness’.
Fourthly, they argued that the provision in s 27(5) for part-time or fixed term appointments would be unworkable if s 27(1) did not include the power to appoint a person directly to a position. Otherwise, the Chief Commissioner would have to make a short-term appointment to a rank under s 27, justified by reference to a ‘specific project or task of finite duration’ or ‘emergency’, and then hope that the applicant would secure a corresponding short term position via the competitive and appealable transfer process under s 34. If they were unsuccessful in so doing, Victoria Police would be left with an officer appointed for a limited time, with a particular task in mind, but who was unable to actually perform that task.
Fifthly, the same outcome could occur where any officer was first appointed laterally to a rank, and then was either unsuccessful in their application for a transfer to a position or a successful appeal was brought against their transfer. Such an officer would still receive the salary and benefits of their rank, but would have no position to occupy and no duties to perform. They would be a drain on Victoria Police, and would also count towards the statutory maximum number of officers employed at that rank, depriving Victoria Police of the chance to employ an officer who could be put to use. This was referred to as the ‘limbo’ argument.
Sixthly, the defendants argued that, even if the process of Ms Landy’s appointment was not an appointment under s 27, and even if there were no power under s 27 to appoint her directly to a position, there had certainly not been a transfer under s 34, which required that an ‘officer’ make an ‘application or request’ for a transfer. In order for an application for a transfer to be made under s 34, the applicant had to be a police officer and have made a request. But Ms Landy had made no such transfer request. In fact, her request to be appointed to the position occurred months before she was a police officer. The plaintiff’s argument would require non–serving officers to make a request for a transfer which could not under s 34 be given effect until they later become a serving officer.
Therefore, whatever had occurred, Ms Landy’s appointment was not the result of a transfer under s 34, or a promotion under s 31. Accordingly, the Board had no jurisdiction under s 141. Given that this judicial review proceeding was limited to the Board’s decision on that very issue, this sixth contention would suffice to dispose of Ms Kerley’s application, regardless of whether there was in fact power under s 27 to appoint Ms Landy to both a rank and position.
Regarding the history of appeal rights under the Act, the defendants submitted that lateral appointments did not attract a right of appeal, and that they had never been appealable. The history of the current legislation, as contained in the 1958 Act, showed that the Chief Commissioner had separate powers of appointment, promotion and transfer. The 1958 Act made no mention of being appointed to rank and then being transferred to another position.
Analysis
The principles of statutory interpretation to be applied were recently stated by Kiefel CJ, Bell and Nettle JJ to be:
The starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.[3]
[3]SAS Trustee Corporation v Miles (2018) 361 ALR 206 at [20] (citations omitted).
In my opinion, the Board correctly decided that it did not have power to hear the appeals. This was because Ms Landy’s appointment was not a transfer under s 34 of the Victoria Police Act 2013. The power to transfer under s 34 is to transfer a police officer to another position at the same rank on application or request by the police officer. That power does not apply in the case of the appointment of former police officers. Section 141 creates appeal rights only in relation to ‘the selection of another police officer for promotion under section 31 or transfer under section 34’. Thus, a valid appeal under s 141 requires that there be ‘another police officer’ who has received either a ‘promotion under section 31’ or a ‘transfer under section 34’. In this case there was no such transfer or promotion, as Ms Landy was instead appointed directly to the position, as well as her rank of Senior Sergeant, under s 27. Her appointment was not a promotion to a higher rank under s 31 and there was no request or application for a transfer under s 34.
There is no reason to limit the power of appointment in s 27 to the rank at which the person appointed is to serve. It also includes a power to appoint to a position. The words of s 27, in my opinion, when read in context, particularly with s 29(4) and s 30(5), do not suggest that it is a power to appoint only to a rank. Section 27 deals with the need to appoint to a rank by providing in s 27(6) that the instrument of appointment must specify the rank at which the person is appointed.
There is no justification for reading down the power of appointment because of the terms of the transfer and promotion powers contained in the Act. Section 27(5) contemplates fixed-term appointments, which may be unworkable if there is not a power under s 27(1) to appoint the appointee to the particular position for the duration of the fixed term.
The terms of ss 29(4) and 30(5) support the conclusion that s 27 contains the power to appoint to a rank and position simultaneously. Whether facilitative or not, these provisions state that the power to appoint someone can be exercised over both ‘the rank at which and position to which he or she is appointed’, to quote words that are part of both subsections. Although the word ‘position’ may be used in some instances in the Act with different meanings, in ss 29(4) and 30(5) it clearly means something that does not include rank, as rank is another term used in the very same sentence, and Parliament must have intended those words to carry different meanings in at least these subsections. Those subsections are part of the relevant context in interpreting the power of appointment conferred by s 27. This approach gives a coherence to the appointment provisions of the Act, which applies the High Court authority on statutory interpretation to which I have referred. The interpretation I have adopted overcomes the problems associated with the ‘limbo’ argument, and gives effect to the purpose of the Act. It is unlikely to have been Parliament’s intention that a person who succeeded, after a competitive selection process, in obtaining appointment to Victoria Police with respect to a particular advertised position should then have to be successful in a transfer request to take up that position.
When the appointment is to a particular position, there is no indication in the Act that the appointment power does not extend to the appointment to a rank and to a position. Nor that an appointment to a rank is to be treated as a separate, discrete step, detached from an appointment to a position.
In my opinion, the Chief Commissioner is not limited to appointing a person to a rank and then having to transfer them to a position for which their appointment was intended. Such a person is appointed to a rank and to a position.
Ms Landy successfully applied for the advertised position of Senior Supervisor within ‘People Development Command’, with initial duty at the Centre for Law and Operational Development. Section 27(6) required the Chief Commissioner by delegate to specify the rank appropriate for that position. The gazette of 12 November 2018 listed this position under the category of Senior Sergeant.
I do not consider that Ms Landy’s letter of appointment suggests that it involved a two-stage process of appointment to a rank and then to a position. Rather, it suggests that Ms Landy’s appointment was as a police officer with the rank of Senior Sergeant and to a position of Senior Supervisor with initial duty at the Centre for Law and Operational Development for an initial period of at least two years.
It may be that, for instance, in the case of a new recruit, that the initial appointment is to something analogous to ‘general duties’ to perform suitable duties as directed in their initial months. However, in many other instances, and Ms Landy’s case is an example, the appointment will be to a position and also to the rank associated with that position.
Reference was made in the Board’s decision to regulation 11 of the Victoria Police Regulations 2014, which is headed ‘Filling positions’. It deals with the filling of positions that are vacant or expected to become vacant, which are instances where the position may be filled without advertising and by way of transfer or promotion in specified circumstances. Reg 11(f) provides that one option for the Chief Commissioner when a position is vacant or is expected to become vacant is to:
(f)advertise the position and promote or transfer an applicant to the position.
I do not consider that this exercise of the regulation making power limits the appointment power that s 27 gives to the Chief Commissioner. It is not permissible to interpret the statute by reference to the regulations.[4]
[4]Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 244 (Mason CJ and Gaudron J); Perry Herzfeld and Thomas Prince, Statutory Interpretation Principles – The Laws of Australia (Thomson Reuters, 2014), 232.
I also do not consider that the materials about the background to the current legislation, which are described above, or the provisions of the Enterprise Agreement assist in deciding the issue raised by this proceeding.
In dealing with the plaintiff’s arguments about limitations on appeal rights, I consider that the following paragraphs of the Board’s reasons for decision explain the reasons for the structure of Part 6 of the Act and the absence, in a case like Ms Landy’s appointment, of the traditional appeal rights:
Considering the Act as a whole, it can be seen that Part 6 (and the advisory functions in sections 29 and 30) are a scheme to support lateral recruitment (above the rank of constable) and provide an alternate and rigorous pathway for the assessment of suitability (merit) for employment, rank and position. This is an alternative assessment process to the competitive selection process envisaged under section 34 and the regulations.
Victoria Police has chosen to provide a further process whereby registrants seeking to return at the rank of sergeant and above must not only be registered, but also apply for vacant positions and go through the usual competitive selection panel process, to ‘win’ the vacant position. Victoria Police is effectively requiring returning police to jump three hurdles: the initial rigorous registration process by the PRS Board, assessment by Victoria Police of suitability to be re-appointed (at all), and then a further competitive selection process, run by the selection panel and delegate.
This is entirely the prerogative of Victoria Police, and may add a detailed level of scrutiny about suitability for the vacant position. It is not however in my view required by the Act, which contemplates a pathway to encourage and facilitate former police to return, namely via registration and by direct appointment to a rank and to a vacant position under section 27.
If the Police Association’s submission was correct, and any re-appointment to Victoria Police required the person to be first be appointed and to then ‘win’ a position through competitive selection, then there would be little utility in the Parliament providing for the Board’s registration and related assessment and advisory functions. It would be selection panels who would determine whether a person suitable to be re-appointed to Victoria Police.
An interpretation ought be preferred which makes sense of the legislative scheme as a whole and does not render the PRS Board’s assessment role nugatory.
Conclusion
In my opinion, the Board was correct in deciding that the Act provided no right of appeal against Ms Landy’s appointment.
The proceeding is dismissed.
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