Lewis v Commissioner of the Queensland Police Service

[2021] QSC 169

SUPREME COURT OF QUEENSLAND

CITATION:

Lewis v Commissioner of the Queensland Police Service [2021] QSC 169

PARTIES:

LEWIS, Greg Anthony

(applicant)

v

COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

BS10584 of 2020

DIVISION:

Trial Division

PROCEEDING:

Judicial Review Application

DELIVERED ON:

23 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2021

JUDGE:

Boddice J

ORDER:

1.    I shall hear from the parties as to the form of the orders.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – where the applicant , a police officer, filed an application to review the decision of the respondent not to implement recommendations made by the Commissioner for Police Service Reviews – where the applicant is aggrieved by the respondent’s decision because it relates to the procedures adopted in a selection process for the appointment of various persons to Inspector positions within the Queensland Police Service – where the applicant contends the procedures adopted resulted in his being denied a promotion or an appointment – whether the selection process failed to comply with s 5.2(2) of the Act because the procedures did not include “inviting applications” for any “police officer position” and did not include “selection on the basis of the merit of the applicant” – whether the respondents decision not to act on recommendations made by the Commissioner for Police Service Reviews involved an error of law or was otherwise contrary to law

Judicial Review Act 1991 (Qld)

Police Service Administration Act1990 (Qld)

Police Service Administration Regulation2016 (Qld)

COUNSEL:

M Black for the applicant

C Murdoch QC and R Berry for the respondent

SOLICITORS:

Gnech & Associates for the applicant

Crown Solicitor’s Office for the respondent

1. On 2 October 2020, the applicant, a police officer, filed an application to review the decision of the respondent not to implement recommendations made by the Commissioner for Police Service Reviews.

2. The applicant is aggrieved by the respondent’s decision because it relates to the procedures adopted in a selection process for the appointment of various persons to Inspector positions within the Queensland Police Service (“the Police Service”).  The applicant contends the procedures adopted resulted in his being denied a promotion or an appointment.  Further, his rights and interests as a police officer are affected as the decision relates to procedures to be adopted in future processes for promotion and appointment.

   Grounds

3. The grounds of the application for review are that the decision involved an error of law or was otherwise contrary to law.[1]

   [1]Judicial Review Act1991 (Qld), s 20(2)(f) or s 20(2)(i).

4. The applicant contends that the selection process undertaken in 2019 was legally flawed because the decisionmakers failed to comply with the procedures required by s 5.2(2) of the Police Service Administration Act1990 (Qld) (“the Act”).[2]

   [2]An allegation that the process also failed to comply with the respondent’s directions, as required by s 4.9(3) of the Act, was not pursued at the hearing.

5. The applicant further contends that, notwithstanding the Commissioner for Police Service Reviews’, on 24 July 2020, finding that the selection process was flawed and that certain recommendations be undertaken regarding the selection process planned for the future, the respondent erred in law in deciding, on 4 September 2020, under s 9.5(2) of the Act, not to implement those recommendations, by failing to find or accept the decisionmakers involved in the selection process failed to comply with s 5.2(2) of the Act.

   Facts

6. On 30 August 2019, the respondent invited applications for appointments to a “generic Inspector vacancy” with actual vacant positions yet to be identified.  Some 184 police officers (including the applicant) lodged applications in response.

7. In late 2019, a panel, consisting of senior police officers, undertook a selection process in relation to the invitation.  That process involved four stages.

8. First, the selection panel caused the written applications to be assessed by Hudson, a private consulting firm.  That assessment, undertaken by persons with no expertise in police work, was solely against “sector wide generic competencies” described as leadership competencies for Queensland, not against any specific job or position in the Police Service.  Hudson presented the selection panel with a list of applicants in order of merit.  The selection panel accepted the merit list, and determined a cut-off point, resulting in 148 applicants proceeding to stage two.  The applicant was one of those 148 applicants.

9. Second, the selection panel caused the remaining 148 applicants participate in an assessment centre process, involving each applicant performing certain tasks and, again, being assessed solely against the generic leadership competencies for Queensland by Hudson.  Those persons undertaking the assessment by Hudson did not have expertise in police work and were not briefed about the context of police work.  Hudson presented the selection panel with a merit list of the remaining applicants.  The selection panel accepted that merit list, and determined a cut-off point, such that 46 applicants were permitted to proceed to the next stage.  The applicant was not one of those 46 applicants.

10. Third, the selection panel interviewed the remaining 46 applicants and assessed them against the advertised key accountabilities.

11. Fourth, the selection panel considered referee reports for those applicants and determined the final order of merit of those applicants and made recommendations to the respondent.

12. Ultimately, 26 of the remaining 46 applicants were recommended for and appointed to various identified positions at the rank of inspector in January/February 2020.

    Review

13. The applicant applied to a Review Commissioner for a review of the decisions constituted by the final appointments.  That Review Commissioner issued a report on 24 July 2020, recommending that the appointments lapse and that the 2020 annual commissioned officer selection exercise incorporate specified recommendations and be undertaken at the earliest possible opportunity.

14. In reaching that conclusion, the Review Commissioner found that the selection process adopted by the selection panel was flawed because the stage one selection process did not consider the extent to which applicants met the advertised “key accountabilities”, meaning there was no consideration of the potential of applicants to discharge the duties of the position in question.  Further, the applicants were not made aware that the first shortlisting process was to be an assessment against generic, sector-wide capabilities alone, when an assessment of an applicant’s leadership capability, insofar as it related to the potential to discharge the duties of the position, required an assessment of the applicant’s ability in leading a work unit in a police force environment.  These flaws resulted in an unfair process.

15. On 2 September 2020, the respondent decided, under s 9.5(2) of the Act that the selection process had not been flawed and the Review Commissioner’s recommendations would not be implemented by the respondent.

16. The respondent decided not to implement those recommendations as the respondent disagreed with the conclusions reached by the Review Commissioner that the selection process was flawed and did not conform with legislative and policy requirements.  Further, officers who had been appointed as inspector would be prejudiced and acceptance of the recommendations may impact the proper administration, management, and function of the Police Service.

17. The applicant was notified of that decision on 4 September 2020.

    Legislative framework

18. The Police Service consists of police officers, police recruits and staff members. All police officers hold a rank. Their employment is governed by the Act.

19. The respondent is responsible for the efficient and proper administration, management and functioning of the police service.  Those responsibilities include the selection of persons as officers and the promotion and demotion of officers.

20. Part 5 of the Act deals with the appointment of personnel. Relevantly, s 5.2 provides:

    “5.2    Appointment to be on merit on impartial procedures

    (1) In this section—

    transfer of a police officer to a position means the appointment of a police officer to a position in which the police officer will hold the same rank and be entitled to at least the same level of salary.

    (2) A decision to appoint a person as a police recruit or to a police officer position must be made by fair and equitable procedures that—

    (a)     include inviting applications and selection on the basis of the merit of applicants; and

    (b)     prevent unjust discrimination, whether in favour of or against a person.

    (3) However, if a decision is made to transfer a police officer on a basis prescribed by regulation, the decision need not involve the procedures mentioned in subsection (2)(a).

    (4) Written notice to a police officer of a transfer because of a decision under subsection (3) must specify the prescribed basis used for the transfer.

    (5) For the purposes of this section merit of an officer comprises—

    (a)     the integrity, diligence and good conduct of the officer; and

    (b)     the potential of the officer to discharge the duties of the position in question; and

    (c)     the industry shown by the officer in performance of the duties of office in the course of the officer’s career; and

    (d)     the physical and mental fitness of the officer to perform the duties of the position in question.

    (6) For the purpose of determining the potential of an officer to discharge the duties of a position the following factors must be taken into account—

    (a)     the performance of duties of office in the course of the officer’s career;

    (b)     the range of practical experience of the officer in the service or outside the service;

    (c)     the ability, aptitude, skill, knowledge and experience determined by the commissioner to be necessary for the proper performance of the duties of the position in question;

    (d)     any relevant academic, professional or trade qualifications of the officer.”

21. The respondent may require an officer who applies for a position in the service to be examined or assessed, to gauge the officer’s potential and mental and physical fitness to discharge the duties of the position.[3]

    [3]Police Service Administration Regulation2016 (Qld), r 15.

22. Pursuant to those legislative requirements, the Police Service has a number of written documents relevant to recruitment and selection, including policies for “recruitment and selection”, standard “merit selection” and inspector appointment guidelines.

    Applicant’s submissions

23. The applicant submits that the selection process failed to comply with s 5.2(2) of the Act because the procedures did not include “inviting applications” for any “police officer position” and did not include “selection on the basis of the merit of the applicant”. The applicants were never assessed against any “police officer position”. Fair and equitable procedures include inviting applications for appointment to a particular police officer position.

24. The applicant submits that this legislative approach accords with the wording of s 5.2 of the Act. It is also consistent with the fact that successful applicants were not simply promoted to the rank of inspector. They were appointed to particular positions requiring differing duties to be undertaken in each position. The advertisement advertised no particular “police officer position”. It invited applications for “Various Locations, Inspector (GENERIC), (TBA)” or a “generic Inspector vacancy” and said that “actual vacancies will be dependent” on the outcome of other processes.

25. The applicant submits that this interpretation is also consistent with a consideration of relevant factors in s 5.2(5), which refers to merit as including “the potential of the officer to discharge the duties of the position in question” and “the physical and mental fitness of the officer to perform the duties of the position in question”.

26. The applicant further submits that the selection process miscarried in that the selection panel failed to assess each applicant itself, thereby failing to observe procedures as required by law and/or failing to take into account relevant considerations.  The selection panel was also required to assess applicants by reference to the “Queensland Police Leadership Framework” document, rather than the “Leadership Competencies for Queensland” document used by Hudson.

27. Finally, the applicant submits that, as the selection process was contrary to the legislative requirements, the respondent’s non-acceptance of that process being legally flawed was itself occasioned by legal error.

    Respondent’s submissions

28. The respondent submits that the procedures adopted by the selection panel complied with the requirements of s 5.2(2) of the Act. That section focuses on a decision to appoint a person to a position and the fair and equitable procedures that must be employed in that process. There is no requirement for any application, as part of that process, to be for a specified police officer position.

29. Further, all positions were of a particular rank. Applicants were asked to nominate preferences for particular vacancies and/or locations and roles. The respondent has express power, under s 5.2(6)(c) to determine the ability, aptitude, skill, knowledge and experience necessary for the proper performance of the duties of that position. The respondent determined that a tiered selection process utilising the leadership competencies for Queensland framework, initially administered by Hudson, was suitable for assessing an applicant’s potential to discharge the duties of the position.

30. The respondent submits a requirement of inviting applications and selection on the basis of merit will not always apply with respect to a change in position, but will always apply with respect to a change in rank. The fact that positions at the rank of Inspector may have varying duties strengthens the argument that specific identification of the position is not required by s 5.2(2) of the Act. The text and purpose of that section allows for applications based upon generic positions identified and specified by rank. Identification of an actual position in an advertisement may result in more onerous requirements on police officers applying for those positions.

31. The respondent further submits the selection panel was not required to assess each applicant for itself.  The leadership qualities relating to the rank of Inspector are the same.  The respondent was entitled to adopt a shortlisting process that involved a preliminary assessment of an applicant’s potential against the leadership competencies for Queensland framework, as that framework was used specifically to assess leadership capabilities.  Whilst police service materials referred to the police leadership framework, the use of the leadership competencies for Queensland framework, a recent development, was identified to applicants, the position description linked to the advertisement also stated that applicants would be assessed under that framework, and the inspector appointment guidelines stated that applications were to be accompanied by a statement addressing that framework.

32. The relevant Police Service policy documents demonstrate a flexibility in the available selection processes.  A fair and equitable procedure required that applicants be assessed on merit.  Hudson independently assessed all written applications and completed a merit list.  The selection panel complied with its obligations to “assess applications” by utilising the services of Hudson and their expertise, and only determined the shortlist of applicants for the next stage after meeting with Hudson to discuss the merit list ratings.

33. Finally, the respondent submits that its decision not to implement the recommendations of the Review Commissioner was just and fair, and was not affected by legal error as the selection process was in accordance with the legislative requirements for appointment on merit.

    Consideration

34. Section 5.2 of the Act specifically requires appointment to be on merit on impartial procedures. The section draws a distinction between the transfer of a police officer and appointment to a police officer position.

35. A decision to transfer a police officer on a basis prescribed by regulation need not involve the procedures required for a decision to appoint a person to a police officer position.

36. A decision to appoint a person to a police officer position must be made by fair and equitable procedures that include inviting applications and selection on the basis of the merit of applicants and prevent unjust discrimination.

37. Section 5.2(2) also draws a distinction between a decision to appoint a person “as a police recruit” and a decision to appoint a person “to a police officer position”. Whilst both must be made by fair and equitable procedures, the appointment as a police recruit relates to the designation of that person as a recruit. By contrast, the appointment of a person to a police officer position is not an appointment of a person as a police officer. It is to a police officer “position”. That is consistent with there being a distinction between rank and “police officer position”. Rank determines seniority. Position refers to the particular role to be undertaken by an officer of the service of that rank.

38. The importance of the word “position” in respect of a police officer is highlighted by a consideration of s 5.2(5) of the Act. That subsection emphasises that, in respect of merit, it is not only factors personal to the particular officer that are relevant. It is also the potential of the officer “to discharge the duties of the position in question and the physical and mental fitness of the officer to perform the duties of the position in question” that are relevant.

39. Section 5.2(6) also highlights the importance of the particular police officer position. It provides that, in respect of potential to discharge the duties, factors to be taken into account include the “ability, aptitude, skill, knowledge and experience determined by the commissioner necessary for the proper performance of the duties of the position in question”.

40. A consideration of s 5.2, in the context of the legislation as a whole, supports a conclusion that the proper interpretation of that section is that a decision to appoint a person to a “police officer position” involves the use of fair and equitable procedures that include inviting applications and selection on the basis of the merit of applicant for the police officer position in question.

41. The process undertaken in the present case, of advertising a generic position of the rank of Inspector, with the particular position to be determined subsequent to the selection process, was not in accordance with s 5.2 of the Act. The subsequent decision to appoint persons to specific police officer positions was also not by fair and equitable procedures. The process undertaken did not involve a selection on the basis of the merits of the applicants which required a consideration of the potential of the officer to discharge the duties of the position in question, and the physical and mental fitness of the officer to perform those duties.

42. As the process undertaken, in respect of the decision to appoint those persons, was not in accordance with the legislative requirements, the respondent’s decision that it was just and fair not to implement the recommendations of the Review Commissioner was affected by error of law.  The respondent wrongly concluded the selection process was not flawed and did not conform with legislative requirements.

1. This conclusion renders it strictly unnecessary to determine ground 2.  In any event, a determination of that ground requires factual findings as to whether the selection panel’s process of discussing with Hudson the merit list created by it, in each of stages one and two, involved a consideration of the contents of those applications.  If it did not, it would be open to conclude that the selection process was also flawed by reason of the failure of the selection panel to adopt a process that was fair and equitable, as the process did not involve the selection panel having regard to the merits of applicants not shortlisted for consideration in stages three and four.

   Conclusion

2. The applicant has established that the respondent’s decision of 2 September 2020 is affected by error of law.  However, the applicant does not seek orders setting aside that decision or setting aside the respondent’s final appointments to the relevant positions.

3. Instead, the applicant seeks declarations to the effect that the appointment decisions were affected by error of law by reason of failures to comply with the requirements of the Act.

4. The respondent does not submit that such declarations lack utility.  The respondent accepts the selection process undertaken may, absent such declarations, be adopted in the future.

5. Against that background, it is appropriate to make the declarations sought by the applicant.

6. I shall hear from the parties as to the form of the orders.