Mareangareu v Patton (in his capacity as Chief Commissioner of Police)
[2021] VSC 15
•28 January 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S ECI 2020 00923
| SIMON MAREANGAREU | Plaintiff |
| v | |
| SHANE PATTON (in his capacity as Chief Commissioner of Police) | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 October 2020 |
DATE OF JUDGMENT: | 28 January 2021 |
CASE MAY BE CITED AS: | Mareangareu v Patton (in his capacity as Chief Commissioner of Police) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 15 |
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ADMINISTRATIVE LAW – Whether the defendant committed jurisdictional error in determining the plaintiff’s application for reappointment as a member of Victoria Police by misconstruing the Victoria Police Act 2013 (Vic) – Defendant erred in law – Jurisdictional error – Decision quashed – Plaintiff’s application remitted to be decided in accordance with the law – Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 – Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 – Police Service Board v Morris (1985) 156 CLR 397 – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 – Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 – Rimanic v Business Licensing Authority (2002) 129 A Crim R 356 – Mareangareu v The Queen [2019] VSCA 101 – Chief Commissioner of Police v IHF [2020] VSC 608 – Victoria Police Act 2013 (Vic) ss 19, 27, 136, 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E White | Tony Hargreaves & Partners |
| For the Defendant | Mr A Palmer QC with Mr D Porteous | Clayton Utz |
TABLE OF CONTENTS
No table of contents entries found.
HER HONOUR:
The plaintiff was a member of Victoria Police. He was charged with criminal offences, found guilty in the County Court of Victoria, and imprisoned. Following this, the plaintiff was dismissed from Victoria Police on 22 November 2018. The plaintiff successfully appealed his conviction and was acquitted. He then sought reappointment to Victoria Police, relying on a section of the Victoria Police Act 2013 (‘the Act’) which expressly refers to reappointment in the event a conviction is set aside, namely s 136(3). A delegate of the defendant decided not to reappoint the plaintiff. This proceeding is an application by the plaintiff to quash the decision not to reappoint him. The plaintiff seeks an order remitting his application for reappointment to the defendant to be determined in accordance with the law.
Summary
Section 136(3) of the Act applies in circumstances where a police officer has been dismissed on the basis of criminal charges punishable by imprisonment being proven, is subsequently pardoned or, as is the case here, set aside. It provides that the officer may be reappointed at the rank and seniority they held before dismissal.
The real issue in dispute is the construction of s 136(3) and whether it operates remedially in respect of persons, such as the plaintiff, who have their convictions set aside. I find the defendant’s delegate erred in law by misconstruing s 136(3). Although they were permitted to consider whether the plaintiff is of good character and reputation, they were not permitted to have regard to the matters forming the basis of criminal charges upon which the plaintiff was later acquitted. Orders will be made quashing the decision and remitting the plaintiff’s application for reappointment to the defendant to decide according to law.
Affidavits
The plaintiff’s originating motion is supported by the affidavits of his then solicitor Timothy Richard Freeman, sworn on 24 February 2020 (‘first Freeman affidavit’) and 16 April 2020.
The defendant relies on the affidavit of Mark Stephen Porter, the delegate of the defendant, sworn on 1 May 2020 (‘Porter affidavit’).
Background
Criminal proceeding
On 1 December 2015, the plaintiff was charged by a Detective Senior Sergeant of Victoria Police with unlawful assault contrary to s 23 of the Summary Offences Act 1966. The unlawful acts were alleged to have occurred on 25 December 2014. The background is detailed in the Court of Appeal decision Mareangareu v The Queen.[1]
[1][2019] VSCA 101 (‘Mareangareu v The Queen’).
A charge against the plaintiff’s co-accused was filed on or about 1 December 2015. Additional charges against the plaintiff were subsequently filed.
On 19 and 20 April and 5 May 2017, a contested committal hearing was heard in the Magistrates’ Court of Victoria. The plaintiff and his co-accused were committed to stand trial at the County Court of Victoria. The charges were set out in a trial indictment.[2] The nature and basis of the case were set out in a summary of prosecution opening dated 5 March 2018.[3]
[2]Exhibit ‘TRF-1’ to the first Freeman affidavit ‘Trial Indictment’.
[3]Exhibit ‘TRF-2’ to the first Freeman affidavit ‘Summary of Prosecution Opening dated 5 March 2018’.
Commencing on 21 May 2018, the plaintiff and his co-accused stood trial in the County Court. On 21 June 2018, a jury returned its verdict on the charges finding the plaintiff not guilty of charges 2, 3, 5, 6 and 7. The jury returned a verdict of guilty on two of the charges. On 31 July 2018, a plea hearing was held.
On 23 August 2018, the plaintiff was sentenced by the trial judge.[4] The plaintiff was taken into custody and immediately commenced serving the sentence of imprisonment imposed on charge 4.
[4]Exhibit ‘TRF-3’ to the first Freeman affidavit ‘Record of Orders’.
Appeal against conviction
On 8 October 2018, the plaintiff filed an application for leave to appeal against conviction and sentence in the Supreme Court of Victoria, Court of Appeal. On 7 May 2019, the applications proceeded before their Honours Priest, Hargrave, and Emerton JJA. The following orders were made that day and the plaintiff was released from custody.
1. The application for leave to appeal against conviction was granted;
2. The appeal is treated as instituted and heard instanter, and is allowed;
3.The conviction sustained by the appellant in the County Court on 21 June 2018 on the alternative to charge 1 (common assault) and on charge 4 of indictment No. C1610853.2 were quashed and the sentences passed thereon are set aside;
4.In lieu, a judgment of acquittal is to be entered on the alternative to charge 1 (common assault) and on charge 4.[5]
[5]Exhibit ‘TRF-4’ to the first Freeman affidavit ‘Notification of Result of Appeal or Application’.
On 8 May 2019, the Court of Appeal published its reasons for judgment on the appeal in Mareangareu v The Queen. The plaintiff was accordingly acquitted of all criminal charges filed against him.
Disciplinary action and dismissal
On 9 December 2015, the plaintiff was served with a notice of interim action pursuant to s 135(1)(a) of the Act transferring him to other duties.
On 5 January 2016, following the filing of a criminal charge against the plaintiff, the defendant served a further notice of interim action pursuant to s 135(2)(a) which continued the same status being the transfer to other duties. That status remained for the duration of the criminal proceedings. The plaintiff continued working as a police member.
On 21 June 2018, following the verdict of guilt returned by the jury in the County Court trial but prior to his plea hearing and sentencing, the defendant served the plaintiff a further notice of interim action pursuant to s 135(2)(c). The plaintiff was suspended from his employment with pay. On 9 July 2018, the defendant served the plaintiff a supplementary notice which advised him that his suspension would be without pay from that date.
On 24 August 2018, following the plaintiff’s conviction in the County Court but prior to the hearing of the plaintiff’s appeal in the Court of Appeal, the Assistant Commissioner of Professional Standards Command, Victoria Police, authorised an inquiry into a criminal charge pursuant to s 136 of the Act in respect of the two criminal offences found proven against the plaintiff (‘the s 136 Inquiry’). The s 136 Inquiry was allocated to Mr Le Grand, as delegate for the Chief Commissioner, for determination. No investigation or charge was made pursuant to pt 7, div 1 of the Act.
An ‘Instrument of Delegation’ under s 19(1) of the Act is signed by the Chief Commissioner dated 27 August 2018.[6]
[6]Exhibit ‘MSP’-1’ to the Porter affidavit.
The plaintiff made an application to adjourn the hearing and determination of the s 136 Inquiry until the hearing and determination of the plaintiff’s applications in the Court of Appeal (which had been filed but not yet heard or determined). By letter dated 19 October 2018, Mr Gorissen, legal manager, Police Association, wrote to Mr Le Grand.[7]
[7]Exhibit ‘TRF-6’ to the first Freeman affidavit.
By letter dated 24 October 2018, Mr Le Grand wrote to Mr Gorissen that the request to adjourn the s 136 Inquiry was rejected. The letter referred to ‘the corrective work of sub-section (3) to (5) inclusive…’.[8]
[8]Exhibit ‘TRF-7’ to the first Freeman affidavit.
On 9 November 2018, the s 136 Inquiry proceeded at the Hopkins Correctional Centre, Ararat, where the plaintiff was serving his sentence of imprisonment. Mr Gorissen again made an application on the plaintiff’s behalf to adjourn the hearing or reserve any final determination until after the Court of Appeal application were heard and determined. The request was again rejected. The hearing proceeded.[9]
[9]Exhibit ‘TRF-8’ to the first Freeman affidavit ‘Transcript of the s 136 Inquiry’.
On 21 November 2018, Mr Le Grand published his determinations on the s 136 Inquiry.[10] Mr Le Grand dismissed the plaintiff from Victoria Police effective from 4.00pm the following day, pursuant to s 136(1)(f) of the Act.
[10]Exhibit ‘TRF-9’ to the first Freeman affidavit ‘Notices of Determination’.
On 22 November 2018, Mr Le Grand published a ‘Criminal Charge Inquiry Report’ in respect of his determination under s 136(1)(f) of the Act.[11]
[11]Exhibit ‘TRF-10’ to the first Freeman affidavit ‘Criminal Charge Inquiry Report’; Exhibit ‘MSP-4’ to the Porter affidavit.
On 29 November 2018, following his dismissal, the plaintiff lodged an application to the Police Registration & Services Board (‘the Board’) to review Mr Le Grand’s decision (‘the Review’).
By letter dated 18 January 2019, Mr Gorrisen wrote to the Secretary of the Board, advancing submissions on the plaintiff’s behalf in respect of the Review. A submission was made that Mr Le Grand erred in rejecting the plaintiff’s request to adjourn the s 136 Inquiry until the plaintiff’s Court of Appeal application had been heard and determined.[12] In response, submissions were advanced by an Acting Inspector as representative of the Chief Commissioner, in an undated letter to the Secretary of the Board.[13]
[12]Exhibit ‘TRF-11’ to the first Freeman affidavit.
[13]Exhibit ‘TRF-12’ to the first Freeman affidavit
On 13 February 2019, the Review was heard.[14] It was submitted on the plaintiff’s behalf that the decision to dismiss him from Victoria Police was unreasonable. Further, that such a decision ought to be set aside and remitted to the Chief Commissioner with a direction that any further action pursuant to s 136 of the Act be stayed until the hearing and determination of the plaintiff’s criminal appeal.
[14]Exhibit ‘TRF-13’ to the first Freeman affidavit ‘Transcript of [the Board’s] Review’.
On 4 March 2019, the Board upheld the decision of the Chief Commissioner to dismiss the plaintiff pursuant to s 136(1)(f) of the Act.[15] The decision was found to be ‘not harsh, unjust or unreasonable’.
[15]Exhibit ‘TRF-14’ to the first Freeman affidavit ‘Decision of the [the Board]’; Exhibit ‘MSP-5’ to the Porter affidavit.
Appointment for reappointment
By letter dated 19 June 2019 from Mr Gorrisen to the Chief Commissioner, the plaintiff made an application for reappointment to Victoria Police pursuant to s 136(3) of the Act (‘the Application for Reappointment’), following the Court of Appeal’s judgment on 8 May 2019.[16]
[16]Exhibit ‘TRF-15’ to the first Freeman affidavit; Exhibit ‘MSP-7’ to the Porter affidavit.
Correspondence regarding the Application for Reappointment follows; by letter dated:
(a) 5 August 2019 from Acting Commander Porter to Mr Gorrisen, the plaintiff was provide a further opportunity to provide any relevant information;
(b) 19 August 2019 Mr Gorrisen to Acting Commander Porter, the plaintiff outlined his interpretation of s 136(3) of the Act, his character, responded to the defendant’s correspondence and repeated the request to be reappointed;
(c) 27 August 2019 letter from Acting Commander Porter to Mr Gorrisen, reaffirmed the defendant’s position that reappointment is discretionary and attached ‘Annexure 1 – Factual Matters’;
(d) 11 October 2019 from Mr Gorrisen to Commander McAlpine (Acting Commander Porter), the plaintiff responded on the operation of s 136(3) and the effect of acquittals, his character, the ‘factual matters’ and repeated the request; and
(e) 9 December 2019 from Acting Commander Porter to Mr Gorrisen, the plaintiff was informed that his Application for Reappointment had been determined and refused.[17]
[17]Exhibits ‘TRF-16’ to ‘TRF-20’ to the first Freeman affidavit; Exhibits ‘MSP-8’ to ‘MSP-12’ to the Porter affidavit.
Ground of review
The plaintiff filed an originating motion in this Court on 24 February 2020 which is set out as follows.
xTHE PLAINTIFF CLAIMS:
The Plaintiff claims the following relief or remedy:
1.An order in the nature of certiorari quashing the Defendant’s delegated decision dated 9 December 2019 not to reappoint the Plaintiff, in his previous rank, as a member of Victoria Police.
2.An order in the nature of Mandamus remitting the Plaintiff’s application for reappointment as a member of Victoria Police to the Defendant to be determined in accordance with law.
3.Such further or other relief as the Court considers just.
4.Costs.
The grounds relied upon are:
1.The Defendant committed jurisdictional error in determining the Plaintiff’s application for readmission as a member of Victoria Police by falling into errors of law thereby affecting his jurisdiction by misconstruing the Victoria Police Act 2013, especially s.136.
2.Further, and in the alternative, the Defendant made erroneous findings and reached mistaken conclusions concerning the Plaintiff’s good character and reputation.
The plaintiff no longer presses ground 2.[18]
Did the defendant misconstrue s 136(3) of the Victoria Police Act 2013?
[18]Plaintiff’s outline of submissions filed on 22 May 2020 [2]; Transcript of Proceedings, Mareangareu v Patton (in his Capacity Commissioner of Police (Supreme Court of Victoria, S ECI 2020 00923, Ierodiaconou AsJ, 14 October 2020) 4:3–5.
The parties’ key submissions are summarised below. The authority upon which they rely is referred to in the analysis below, where necessary and relevant.
Plaintiff’s submissions
The plaintiff ought be reappointed to Victoria Police. The defendant has misconstrued s 136(3) of the Act.
Sections 136(3)-(4) of the Act
Sections 136(3)–(4) are remedial in nature and should be given effect as such. The words ‘may be reappointed’ are designed to bestow a status upon the police officer, not to create a discretion in the Chief Commissioner. The status bestowed is that of good character and reputation so as to satisfy, for example, the prescribed criteria for appointment otherwise provided in s 27(2). By reg 5 of the Victoria Police Regulations 2014 (‘the Regulations’), s 27(2) includes as a criterion for appointment that the person is of good character and reputation. The fact that an officer is appointed to Victoria Police carries with it the finding that the person satisfies the criterion for appointment.
Sections 136(3)–(4) are legislative statements that the person who is the subject of the section, namely the police officer, is a fit and proper person to be appointed to Victoria Police. They enable the Chief Commissioner to be satisfied, without further inquiry, as to the fitness of the applicant police officer. The defendant’s contention that the assessment of whether the applicant is a fit and proper person must be separately considered is accordingly rejected.
Section 136(3) does not create power or discretion in the Chief Commissioner to reappoint. The power to appoint is contained in s 27. The context in which s 136 appears includes the presumption that the legislature knew the effect of an acquittal and knew there was a general power to appoint contained elsewhere in the Act. In those circumstances, it enacted the remedial provisions in s 136. If s 136(3) merely created a power or gave the Chief Commissioner the discretion to reappoint, it would be superfluous as that power existed elsewhere.
It does not assist to determine whether s 136(3) in fact confers a power. If the Court finds it does not confer power, then it is of course the facultative process by which the plaintiff can be reappointed. If the court finds that it does confer a power, then the recipient of the power has a discretion. The plaintiff accepts that ‘may’ confers a discretion: s 45 of the Interpretation of Legislation Act 1984. As to the onus to persuade the Court otherwise, it does not arise here because it proceeds on an assumption that power has been conferred. If it had been conferred by the use of the word ‘may’, the plaintiff would accept the onus is on him to prove there is not a grant of discretionary power and s 45 of the Interpretation of Legislation Act would make that a hard argument. However, that is not the case here.
Section 136(3) is a deeming provision in respect of an applicant’s character and reputation. The deeming effect relates to the subject matter in s 136(3). That is, where a conviction has been set aside. It may well be between an acquittal and an application or decision to reappoint, the applicant conducts themselves in a manner so as to render them not of good character or reputation. It is not contended that the Chief Commissioner is unable to take such supervening conduct into account. There does subsist in the Chief Commissioner a discretion to reappoint and the plaintiff says it is very confined discretion.[19] The discretion is confined or limited having regard to the subject of s 136. Here, the only conduct relied on by the decision-maker was the charge on which the plaintiff was acquitted.
[19]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.
Upon a conviction being set aside, former police officers may or may not wish to be reappointed.
Good character and reputation
The question of the plaintiff’s character and reputation are not for determination in this matter. There is no clear evidence of unlawful conduct by the plaintiff. He has been acquitted of all matters for which he was charged. There has only been one hearing, the criminal trial, in which matters could be properly addressed, and the consequent procedure before the Court of Appeal. No other judicial or quasi-judicial process has established anything contrary to acquittal. This may be the consequence of the Chief Commissioner’s decision not to lay charges under s 125. It may be that he could still have laid that charge despite acquittal. But, the Chief Commissioner made the tactical and forensic decision not to take that step.
In reply to the defendant, it is accepted that it is centrally important that police officers be of good character and reputation. That does not gainsay the proposition that s 136(3) deems an officer to be of good character and reputation. Section 136(3) confers a status on the former police officer who is the subject of s 136(3).
Here, by rejecting the plaintiff’s application for reappointment solely on the basis of character and reputation, the defendant fell into jurisdictional error. The decision-maker fell into an error of law which caused him to identify a wrong issue, ask a wrong question and ignore the status of the plaintiff as being of good character and reputation. In so doing, he relied on irrelevant material, made an erroneous finding and reached a mistaken conclusion. In making a decision based on the plaintiff’s character and reputation, he exceeded his powers.
Natural justice
Section 136 is properly characterised as a shortcut. This is especially because of the different categorisation between the division in which s 136 is contained, namely div 2, and div 1. The Chief Commissioner is not obliged to accord procedural fairness in respect of div 2. Common law precepts of natural justice may apply and may be sensibly adopted by the Chief Commissioner. However, on its face, there is an absence of procedural fairness in div 2. The proceedings under div 2 were not in the nature of a hearing.
The reference to natural justice is also relevant because one of the consequences of acquittal is that, in the absence of further findings, further trial or disciplinary process, the plaintiff is presumed innocent and so the question of natural justice in terms of being able to prove or defend himself becomes relevant.
Context, purpose and mischief
The role of the Chief Commissioner is provided by s 16. There are specific powers given to the Chief Commissioner in other parts of the Act.
By s 27, the Chief Commissioner is given a broad power to appoint persons as police officers below the rank of Assistant Commissioner. That power is prescribed by s 27(2) which provides that the Chief Commissioner may make an appointment ‘only if the person satisfies the prescribed criteria for appointment’.
Section 28 imposes specific limiting provisions on those appointed by way of period of probation.
Part 7 of the Act provides for the discipline of police officers who commit a breach of discipline. Breaches of discipline are defined in s 125 to include a range of matters up to and including circumstances in which an officer has been charged with offences under law and the offence has been found proven.
Part 7 of the Act provides the process by which suspected breaches of discipline can be investigated, the process of charging a police officer with a breach of discipline, the formalities of the charge of breach of discipline, and provisions for inquiry into a charge. Sections 126–32 provide for an inquiry into a charge and what may happen in circumstances where a charge is proven.
The procedure on an inquiry into a charge is constrained by the rules of natural justice and, at the hearing of the charges, the police officer charged may appear and be represented: s 131.
The disciplinary regime involves the power to investigate whether an officer has committed an offence punishable by imprisonment and provides the steps to be taken in the event that an officer is charged with such an offence: s 135.
Relevantly for this matter, s 136(1) provides that in circumstances where an officer has been charged with a criminal offence punishable by imprisonment, and it is found proven, then without further inquiry as to whether or not the officer has committed the offence or done anything which would otherwise constitute a disciplinary offence, the Chief Commissioner may impose a disciplinary penalty on the officer ranging from reprimand to dismissal.
The effect of the process provided by s 136 is that the Chief Commissioner is relieved from having to conduct an inquiry into whether or not the alleged incident was committed and from having to conduct a hearing constrained by the rules of procedural fairness. The Chief Commissioner may move to the imposition of disciplinary penalties where an officer is convicted of an offence punishable by imprisonment.
In s 136(1), the conviction is the condition precedent. The basis for the imposition of a disciplinary penalty is the conviction.
Section 136(3) provides for the circumstances where the conviction is subsequently set aside, that is, the circumstances in which the condition precedent no longer exists. The effect of a conviction being set aside in law is that a person can no longer be seen ever to have been convicted. Here, the plaintiff was acquitted of all charges. The condition precedent of conviction ceased to exist. Therefore his status of being of good character and reputation is restored.
This construction of s 136(3) is consistent with s 137. Its effect is that once action has been taken by the Chief Commissioner against an officer for a disciplinary offence under s 135, then no further action can be taken in respect of that same conduct.
This construction is also consistent with the scheme of the Act relating to the way in which the Chief Commissioner might be satisfied as to good character and reputation of potential members of Victoria Police. The Chief Commissioner is not obliged to make an independent assessment in all cases of whether the applicants are of good character and reputation. If an applicant, for example, is registered by the Board pursuant to s 105, then the Chief Commissioner is able to appoint that person without further inquiry as to reputation and character.
The word ‘may’
The word ‘may’ is not used in s 136(3) as conferring power on the Chief Commissioner within the meaning of s 45 of the Interpretation of Legislation Act. It is accepted that ‘may’ is a permissive or facultative expression.
The use of the word ‘may’ in s 136(3) as an auxiliary verb is attached to the verb ‘reappointed’ and operates as a permissive or facultative mechanism by which the police officer, the object of s 136(3), ‘may’ be reappointed. As the defendant submits, the ordinary meaning of ‘may’ is to authorise or permit. In Malika Holdings Pty Ltd v Stretton,[20] relied upon by the defendant, the court draws a distinction between that and the use of ‘may’ to give power.
[20](2001) 204 CLR 290, 299 (‘Malika Holdings Pty Ltd v Stretton’).
The distinction between the permissive or facultative use of ‘may’ on the one hand, and the conferral of a power on the other hand, underlines s 45(1) of the Interpretation of Legislation Act. It provides for the circumstances where the word ‘may’ confers a power. It does not deal with the alternative meaning of ‘may’. Examples of the way in which ‘may’ is used in either of the two meanings can be seen from numerous references in the Act. Examples of the permissive or facultative use are found in ss 22(1), 23, 27(4)–(5), 38(4), 40(3), 52(3) and, of course, 136(3). There is no reference to the Chief Commissioner in s 136(3). This may be contrasted with other sections in which there is an express conferral of power on the Chief Commissioner. Examples of the use of ‘may’ being used in the sense of conferring power include ss 5, 10(1), (3), (5), 11(1), (3), 14(1) and numerous conferrals of power on the Chief Commissioner including ss 19, 24(1)–(3), 26(1), (4), 27(1)–(3), 28(4), 29(2), 30(2)–(3), 31.
In all cases where the word ‘may’ confers a power the sections have the same grammatical structure. That is, the section has as its subject the repository of the power, as the verb that which the repository power is empowered to do and as its object the person or thing that receives the action of the verb. This is to be contrasted with those sections where the ‘may’ is used in a permissive or facultative way. For example in s 136(3) the subject is the acquittal, the auxiliary verb ‘may’ is operative of the main verb ‘be reappointed’ and the object is the officer who is the recipient or the object of the action of the verb.
The defendant’s submission, implicitly, that the meaning of the word ‘may’ means the conferral of a power, other than in matters of proven exception, is incorrect. In reply to the defendant, its contention that:
(a) contrasting the power in s 136(3) with that in s 27(1) of the Act are rejected. Implicit in that contention is that a period of probation is inconsistent with reappointment under s 136(3). It is unclear why a period of probation would be inconsistent, but in any event, as discussed above, the general power in s 27 is limited by reason of the specific provision contained in s 136(3).[21]
[21]Saraswati v R (1991) 172 CLR 1, 23 (McHugh J, Toohey J agreeing).
(b) s 27 does not provide an option of appointing a person at the previous rank or seniority is not entirely correct. Section 27 makes provision that the Chief Commissioner is able to appoint a person as a police officer to any rank below the rank of Assistant Commissioner.
(c) the absence in s 136(3) of a reference to appointment ‘under section 27’ (as used in s 30 of the Act) supports a power existing independently in s 136(3) is rejected. The use of the word ‘reappoint’ directs attention back to the initial appointment.
(d) s 136(3) operates in respect of an acquittal as well as a pardon does not advance its argument. There is no reason to suggest that a pardon could not have the same deeming quality as an acquittal.
(e) the setting aside of a conviction can lead to a variety of results and that militates against the plaintiff’s interpretation of s 136(3) is rejected. The Chief Commissioner has a variety of options:
(i) if the conviction was set aside and a new trial ordered, and the person was reappointed prior to the determination of the new trial, the Chief Commissioner has power to stand down the officer pending the hearing and determination of the new trial. This can be done with or without pay: ss 126(2)(c), 127(4)(c).
(ii) if there is a judgment of conviction for an alternative offence, the Chief Commissioner will still be in a position of being able to lay a charge against an officer on the basis that the officer had an offence found proven: s 136(1).
(iii) if there is a finding of not guilty because of mental impairment the Chief Commissioner has power under the Act to enquire into the health and fitness of an officer (s 67) and in circumstances where an officer is incapacitated for duty by reason of physical or mental incapacity the Chief Commissioner may cause that officer to be retired: s 67(5).
Accordingly, to the extent there is no or limited discretion in the Chief Commissioner to reappoint the former officer in any of those circumstances does not mean that the Chief Commissioner is obliged to continue to employ that officer or is unable to take appropriate steps in the event that further disciplinary proceedings or offences have occurred. It is just that there is a process to be followed, including the process of according procedural fairness in the event that the Chief Commissioner chooses to exercise their powers.
(f) other legislation makes provision for automatic consequences of a conviction and assists in interpreting this legislation, is rejected. It says nothing about the effect of an acquittal in the context of the disciplinary scheme established by the Act. This is because the conviction is the condition precedent for the disciplinary steps to be taken, even if they are discretionary steps. It is the absence of the condition precedent on which the plaintiff, in part, relies.
(g) there has to be discretion under s 136(3) to maintain public confidence in the police is rejected. The capacity of the Chief Commissioner to charge an officer with a disciplinary offence is one mechanism to compel community confidence. If an officer is charged under s 125, there is a complete balancing exercise which is to be followed. Pursuant to s 131(3)(d), the rules of natural justice are binding. Part 8 provides for review. The capacity to contest disciplinary charges is absent under s 136. There is a balance between a disciplined force and the ability to dismiss a member, on the one hand, with the rights of the member.
(h) the reference to s 22 is an example of passive voice that the defendant relies upon. It is not a power that vests in the Chief Commissioner. The Governor in Council makes the appointments. The Chief Commissioner’s power to appoint in s 27 permits people to be appointed and it does not refer to appointment at a particular seniority because s 136(4) has that effect.
Power to reappoint
The power to appoint and reappoint exists in s 27. The disqualifying criteria relied on here in respect of the application by the plaintiff, does not exist. The plaintiff satisfies the prescribed criteria in s 27(2) going to good character and reputation.
Any discretion retained by the Chief Commissioner as to reappointment pursuant to s 27 is constrained by the operation of s 136(3). As discussed above, it provides for, in effect, a deemed satisfaction of the criterion as to character and reputation. Accordingly, while the Chief Commissioner may retain a discretion under s 27, it is constrained or narrow.
The general provisions relating to the appointment of persons to Victoria Police contained in ss 27–8 must give way to the specific provisions contained elsewhere in the Act, for example in ss 136(3)–(4). Section 136(3) deals specifically with the matter and s 27 operates as a general provision. The general discretion granted by s 27 and conditioned by s 28 may not be used to avoid s 136(3).
The structures of ss 27 and 136(3) are significantly different. Section 27(1) has as its subject the Chief Commissioner. Its object is a person who has applied to be a police officer. It uses the verb ‘may appoint’. On the other hand, s 136(3) does not have the same provision so as to give, unequivocally, the power to appoint or reappoint. Accordingly, the preferable interpretation is that the power to reappoint the plaintiff arises under s 27 and is constrained by the provisions of ss 136(3)–(4).
However, if the power to reappoint lies in the Chief Commissioner pursuant to s 136(3) then the power would also be limited. The provision in s 136(4) of being reappointed ‘under subsection (3)’ does no more than express a reappointment under the authority of s 136(3).
To the extent that the words in ss 27–8 have a general meaning, they must give way to the specific provisions contained in ss 136(3)–(4).
The interpretation above is consistent with: the purpose of s 136(3), the mischief it addresses, the context of the Act and particularly its disciplinary provisions, and the words used. Moreover, it is consistent with principles of interpreting remedial provisions. They generally require a liberal interpretation favourable to those the provision is designed to benefit.
In reply to the defendant, the plaintiff does not say that there is an automatic reappointment. The plaintiff says that there is a general proposition that an acquittal puts the person back into the position they might otherwise have been in accordance with the terms of the statute.[22] Restoring someone to their position extends to setting aside the conviction and thereafter the common law presumption of innocence applies. There are no other judicial or quasi-judicial processes here that would displace the presumption of innocence.
[22]Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220, 224 (‘Cavanough’).
In respect of the power in s 32 to appoint former police officers, this provides another example of where the Chief Commissioner does not have to make an independent decision about the assessment of the former police officer. They can rely upon another body. So it is another example of a deeming effect.
Defendant’s submissions
The decision-maker refused the plaintiff’s application for reappointment pursuant to s 136 on the basis that he was not satisfied that the plaintiff was of good character and reputation. Despite repeated opportunities, at no point during the process of applying for reappointment, or in these proceedings, has the plaintiff responded to the factual matters from which the decision-maker concluded that he was not of good character and reputation. Those matters therefore remain uncontested, unexplained and unaddressed.
On the plaintiff’s construction of s 136(3), the Chief Commissioner would have no option but to reappoint the plaintiff in circumstances where members of the public have seen his actions leading to the charges. The plaintiff’s conduct was clearly relevant to the assessment of his character and reputation and whether it is appropriate that he be reappointed as a police officer. There is clear evidence as to the conduct of the plaintiff using powers entrusted to him that he took an oath to exercise more fully and used it unlawfully with a lack of integrity. To maintain public confidence in police, there must be a discretion under s 136(3) in the Chief Commissioner as to whether or not to reappoint. The plaintiff is saying the Chief Commissioner is compelled to close his eyes to the elephant in the room by a constrained and convoluted reading of s 136(3).
The Act provides the governance and regulation of Victoria Police including, the:
(a) appointment and promotion of Victoria Police personnel: pt 3;
(b) duties, powers, entitlements, protection and liability of Victoria Police personnel: pt 4; and
(c) disciplining of Victoria Police personnel: pt 7.
Part 7 contains three divisions:
(a) div 1 deals with breaches of discipline by police and protective services;
(b) div 2 provides for situations where the Chief Commissioner believes that the police or protective services officer has committed an offence punishable by imprisonment; and
(c) div 3 deals with the effect of suspension, dismissal or reduction of rank.
The plaintiff was dismissed under s 136(1) of the Act, which forms part of div 2, and his reappointment was refused under s 136(3). Section 137 provides that the Chief Commissioner may not take action against the police officer under div 1 in respect of an act which that officer has had action taken against him under s 136(1).
Section 136(3) confers on the Chief Commissioner the power of reappointment which may or may not be exercised at their discretion. In exercising the power, they are entitled to consider whether the applicant is of good character and reputation. If the police officer has been dismissed and their conviction set aside, the Chief Commissioner must have the discretion to work out, as they would if that person was applying to Victoria Police for the first time, whether they are someone they want in Victoria Police. The Chief Commissioner is entitled to review the application for reappointment. Here, the plaintiff failed to satisfy that criterion of being a person of good character and reputation.
If, alternatively, the power of reappointment is found not in s 136(3), but in s 27(1) of the Act, that power is also discretionary and may also be exercised having regard to an applicant’s actual character and reputation.
Text and context of s 136(3)
Both s 27 and s 136 use the word ‘may’. The word ‘may’ is a ‘permissive or facultative expression’, which is presumed to operate according to its natural meaning.[23] This ordinary meaning is to authorise or permit. It lies upon ‘those who assert that the word ‘may’ has a compulsory meaning to show, as a matter of construction of that Act, taken as a whole, that it was intended to have such a meaning’.[24] Here, the onus is on the plaintiff to shift that presumption.
[23]Ward v Williams (1955) 92 CLR 496, 505.
[24]Ex parte Gleeson [1907] VLR 368, 373 (Cussen J).
Where the word ‘may’ is used in conferring the power, s 45(1) of the Interpretation of Legislation Act provides that the power so conferred may be exercised, or not exercised, at discretion. Where s 45(1) applies, the power is permissive and discretionary. The plaintiff seeks to avoid the operation of s 45(1) by saying s 136(3) does not confer a power. The defendant says it does.[25]
[25]Shields v Chief Commissioner of Police (2008) 19 VR 33, 53 [95] (Bell J).
In reply to the plaintiff, this is not the type of statutory provision where ‘may’ becomes must. The authorities relied upon by the plaintiff are very different to this case. Moreover, nothing turns on the use of passive voice and there is authority to that effect.[26] There is also another example of the use of passive voice in the Act, namely the power to appoint a Deputy Commissioner is expressed in s 22(1) in a passive voice.
[26]Roads Corporation v Dacakis (1995) 2 VR 508, 535–7 (‘Dacakis’) cited in Roads Corporation v Love (2010) 31 VR 451, 545 [775] and Minister for Energy, Environment and Climate Change v Morton [2017] VSC 774 [40]–[42] (‘Morton’).
Section 136(3) confers a power of reappointment because:
(a) whilst there is no doubt the Chief Commissioner has the power of appointment under s 27(1), it carries certain statutory consequences, including: that an appointee is subject to a period of probation, which may be subject to a further period of probation, and may be dismissed at any time while on probation. Section 136(3) enables the Chief Commissioner to bypass the whole probation process in pt 3.
(b) it confers an additional power on the Chief Commissioner to reappoint a person, at the rank and seniority he or she held. That option is not available under s 27.
(c) s 136(4) refers to reappointment ‘under subsection (3)’. This suggests an appointment under the authority of s 136(3).
(d) by contrast, s 30 authorises the Chief Commissioner to appoint former police officers if certain conditions are met, and does so by reference to the power of appointment under s 27, indicating that s 30 (unlike s 136(3)) does not confer an additional power of appointment.
Even if the plaintiff is correct to assert that s 136(3) does not ‘confer power’ but merely conditions the exercise of the general appointment power in s 27(1), this does not assist his case. It is agreed that the power of appointment in s 27 is discretionary. The plaintiff cannot simultaneously accept that and assert that the power is so constrained by s 136(3) that it can only be exercised in one way.
If, as the plaintiff asserts, s 136(3) provides for a deemed satisfaction of the criterion as to character and reputation, then it prohibits the Chief Commissioner from having regard to material highly relevant to the exercise of their power of appointment, namely whether the character and reputation of the person seeking reappointment meets the standards expected and required of an officer of Victoria Police.
Moreover, the effect of s 136(3) contended by the plaintiff would not be limited to cases of acquittal. It would extend to cases where an officer has been pardoned in the exercise of the Royal Prerogative of Mercy. A pardon is not equivalent to an acquittal but merely relieves the person pardoned from the consequences of their conviction.
Further, s 136(3) applies to every case where a conviction has been set aside, including those where: a new trial is ordered and there is a judgment for conviction of an alternative offence or where there is a finding of not guilty because of mental impairment. Parliament cannot have intended that in those situations a dismissed officer would have an automatic right of reappointment. Yet there is no basis in the wording or context of s 136 for a finding that s 136(3) operates differently in such cases. If the plaintiff’s construction of s 136(3) is correct, then in those situations the Chief Commissioner would be precluded from exercising any discretion as to whether or not to reappoint the former officer and to take the conduct that was the subject of the charges into account in exercising the discretion. Parliament cannot have intended to so fetter the Chief Commissioner’s power of reappointment.
The defendant’s construction of s 136(3) is reinforced by s 137. Section 137 prohibits the Chief Commissioner from taking any other disciplinary action against a person who has been disciplined under s 136(1), including action for a breach of discipline under pt 7, div 1. It is like a double jeopardy rule. Division 1 provides no mechanism of reappointment. Accordingly, the exercise of the reappointment discretion in div 2, namely in s 136(3), is the sole means by which the Chief Commissioner can be satisfied as to whether the conduct, that is the subject of the charges, is consistent with that person returning to service with Victoria Police.
Good character and reputation
It is critical that police officers are of good character. There is a high level of community trust placed in them. They are given special powers and trusted to exercise those powers in accordance with their oath or affirmation. The role of Victoria Police is ‘to serve the Victorian community and uphold the law so as to promote a safe, secure and orderly society’: s 8. It is of great importance that persons whose conduct or character is doubtful be kept out of the police force. If an officer cannot be entrusted to exercise powers lawfully and with integrity, then the Chief Commissioner cannot be sure that community confidence will be upheld. The Chief Commissioner has power to discharge the responsibility ‘to weed out persons concerning whom he entertains any reasonable doubts’.[27] This is of great public importance. It includes powers to determine whether members should be appointed, promoted or disciplined.
[27]O’Rourke v Miller (1985) 156 CLR 342, 354 (Gibbs CJ, with whom Mason and Dawson JJ agreed) (‘O’Rourke v Miller’).
The primary role of the Chief Commissioner is to maintain proper standards of conduct through investigating and sanctioning. A police officer being of good character is pivotal to their functions. It cannot be that the Chief Commissioner is not permitted to take into account conduct which is inconsistent with someone acting with integrity as a police officer. Assessments of good character permeate the Act and the Chief Commissioner’s discretionary powers under it.
(a) each conferral of power on the Chief Commissioner to appoint a person to Victoria Police includes, as are prescribed criteria, that the person be ‘of good character and reputation’: ss 24(2)(b), 38(2), 103(a) of the Act; regs 5(1)(a), 8(a) of the Regulations;
(b) Division 1 of pt 7 provides that conduct that reflects poorly on an officer’s character may amount to a ‘breach of discipline’ which could lead to them being dismissed: s 132(1)(h). Breaches of discipline include ‘disgraceful or improper conduct’ (whether or not in an official capacity) and conduct ‘likely to bring Victoria Police into disrepute or diminish public confidence in it’: ss 125(1)(h), (j); and
(c) when considering whether to promote a police officer, the Chief Commissioner is required to have regard to the ‘efficiency’ of the candidate for promotion and that includes a requirement of ‘good conduct’: ss 4(1), 31(2).
Victoria Police can only have confidence in its officers’ ability to promote their values and maintain community confidence in their integrity by ensuring that its members of are of good character and reputation. The defendant’s construction of s 136(3) therefore promotes the objects and purposes of the Act. Its construction is in accordance with s 35 of the Interpretation of Legislation Act.
The plaintiff’s submission that he is entitled to reappointment is at odds with the purpose of giving the Chief Commissioner disciplinary powers, namely insuring integrity.
Natural justice
In reply to the plaintiff, the fact there is no express provision providing for natural justice in div 2, as compared to s 131 in div 1, does not mean that the person conducting the inquiry in div 2 is not bound by the rules of natural justice. Nothing rides on natural justice not being expressed in div 2. Every decision-maker exercising a power of this nature is subject to and bound by rules of natural justice regardless of whether or not they are expressed in statute. In this case, the plaintiff was afforded natural justice.
During the process, the plaintiff requested an adjournment and it was refused for reasons set out in the correspondence. There is no express power to adjourn, or not to adjourn, in the legislation. It is the Chief Commissioner’s discretion. There is no suggestion that Victoria Police did not regard itself as having the power to grant the adjournment. There is nothing in the legislation to suggest the Chief Commissioner could not have granted the adjournment if they chose. Here, one can understand why the power to adjourn might not be exercised, that is because the plaintiff was imprisoned. Nothing turns on the question of adjournment. The decision-maker knew that they were obliged to provide natural justice.[28] Submissions were made and an inquiry was conducted and reviewed in accordance with the rights provided for in the Act. The plaintiff made full submissions before the decision was upheld. Natural justice continued to be provided to him after his conviction was set aside.[29] Accordingly, the plaintiff was afforded natural justice all the way through the process.
[28]Exhibit ‘TRF-7’ to the first Freeman affidavit, 2.
[29]Exhibits ‘TRF-16’ to ‘TRF-18’ to the first Freeman affidavit.
If the inquiry into the plaintiff’s conduct had been adjourned until after the appeal, the plaintiff says he would not have been dismissed. That is not quite right. The plaintiff could not have been dismissed under s 135 of div 2. However, disciplinary charges could have proceeded under div 1. So the effect would not be to grant immunity from the disciplinary process. It would revert back to the situation where the Chief Commissioner proceeded against the plaintiff under the disciplinary provisions in div 1.
It is conceded that s 135 provides a more streamlined process than div 1. The need for a more detailed inquiry may be less. Although there does not need to be an inquiry, there is, and the decision-maker is bound by natural justice. However, s 135 is not a shortcut. There is a criminal investigation and during that time, the Chief Commissioner, may suspend the officer. If criminal charges are laid, the officer is then in the criminal trial process. In some ways, div 2 is a more stringent process because the entirety of the criminal process must be engaged and it is more arduous and lengthy. Within that, the officer has full rights to natural justice.
The idea that an acquittal operates as a bar to disciplinary proceedings is wrong. If there is a mixed acquittal and conviction result, the Chief Commissioner dismisses on the ground of the convictions and also conducts a disciplinary procedure on the non-convictions.
Character and reputation are questions of fact not ‘status’
The plaintiff misconstrues s 136(3) as bestowing a ‘status’ on the applicant of ‘being of good character and reputation’. A criterion of good character and reputation requires a factual inquiry into the person’s actual character and reputation, as revealed by their conduct, not an inquiry into whether a person has, or has been deemed by law to have, a particular status.
An acquittal does not entitle a person to be restored to their former position, as the plaintiff contends. An acquittal does not compel the factual conclusion that the plaintiff is a good character and reputation.
The Act does not define ‘good character and reputation’. Those words, and variants of them, are familiar to statutes regulating professions. There are well-established authorities concerning those words. These include:
(a) a test of ‘good fame and character’ is a test of ‘ethical fitness’ which looks to the presence of enduring moral qualities;[30]
[30]In re Davis (1947) 75 CLR 409, 420 (Dixon J).
(b) fame or reputation refers to a person’s character in the relevant community, whereas character refers to the persons ‘actual nature’;[31]
[31]Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 [17] (Young CJ in Eq, with whom Meagher and Tobias JJA agreed).
(c) one must consider matters affecting the moral standards and attitudes and qualities (of an applicant for registration) and not merely consider the applicant’s general reputation;[32]
[32]Prothonotary of the Supreme Court of New South Wales v Alcorn [2007] NSWCA 288 [58] (‘Alcorn’).
(d) a person’s ‘good character’ for the purposes of such a test must relate to ‘qualities relevant to practice as a professional’;[33]
[33]Ibid [59] citing McBride v Walton [1994] NSWCA 199 (Kirby P, in dissent).
(e) honesty and integrity are important qualities in many spheres of conduct, especially so when there are significant public interests involved in the conduct of particular persons, such as police officers;[34]
(f) whether a person is of good character and reputation is a matter to be determined at the time of the hearing or decision and not at some earlier time;[35] and
(g) reformation of character may take place over time but should not be assumed.[36] If a person has demonstrated serious deficiencies and standards in the past, there must be clear proof showing that they have now established themselves to be a different person.[37]
[34]Council of the Law Society of New South Wales v Kinchington [2017] NSWCA 278 [28] (Basten, Macfarlan and Ward JJA) (‘Kinchington’). See also Police Service Board v Russell John Morris (1985) 156 CLR 397, 412 (Brennan J).
[35]Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448, 475 (Holmes JA) (‘Tziniolis’); Alcorn [57] (Hoeben J, with whom Beazley and McColl JJA agreed).
[36]Kinchington [34].
[37]Tziniolis 461 (Walsh JA).
An acquittal says nothing as to the conduct of the person who is the subject of the charges. It is not a finding of innocence. Its only affect in law is to prevent the accused being charged again for the same offence. The plaintiff offers no explanation as to why the effect of an acquittal may lead to a person being deemed to be of ‘good character and reputation’ other than by submitting the effect of an acquittal is that no conviction is recorded. The verdict of acquittal does not have a status-conferring effect beyond the scope of criminal law. It should not prevent the Chief Commissioner from forming a view as to the person’s character, conduct and reputation and whether it accords with the expectations and requirements of members of Victoria Police.
Section 136(3) does not set out the conditions in which it is to be exercised. The plaintiff accepts there is a discretion by the Chief Commissioner. On the plaintiff’s own case, there is not actually an entitlement to be reappointed because the plaintiff accepts supervening conduct may be taken into account. For instance, if the plaintiff committed offences while in prison, the Chief Commissioner could consider such conduct. If the plaintiff had become completely physically unfit, because it is a criteria for appointment, that might also be taken into account.
Comparison of the Act with other legislation
Each other jurisdiction in Australia has a statute governing its police force; except the Australian Capital Territory. Each confers discretionary powers to dismiss police officers. The only other statute than the Act which contemplates an acquittal of an officer for a criminal offence is the Police Act 1892 (WA). It provides that where an officer has not yet been dismissed but is convicted of an offence and later acquitted, the acquittal is no bar to the officer being dismissed on the basis of the misconduct that is the subject of the earlier conviction: s 33W.
Outside of the policing context, the conviction of an appointee or officeholder for an offence is treated in a number of different ways. This includes: a discretion being conferred on a particular person as to whether the convicted person should be removed from office, the conviction automatically resulting in vacation of office, automatic dismissal after an appeals process is completed, and automatic dismissal subject to a discretion to retain the convicted person.
Where there is a successful appeal, the reappointment process of an appointee or officeholder takes a variety of forms in other legislation including: a discretion to reappoint where a conviction is quashed; reappointment that is not subject to a discretion but upon request of the acquitted member; and where the statute provides for automatic vacation of office upon conviction, where the conviction is later quashed, the person is taken never to have been dismissed.[38]
[38]See eg Public Sector Management Act 1994 (ACT) ss 137, 138(2); see eg Fire Brigade (Administration) Act 1974 (ACT, repealed), s 48(5).
It is incorrect for the plaintiff to assert that the effect of an acquittal is to require a person to be restored, in all the circumstances, to the position they occupied earlier, and that the statute must be construed in that light. What a particular statute requires is a matter of its construction. In construing the Act, it is important to observe it:
(a) does not provide for an automatic dismissal of an officer convicted of a criminal offence, even where that offence is punishable by imprisonment. Rather, the Chief Commissioner is required to exercise a discretion to determine what action should be taken following a finding of guilt;
(b) interposes a discretion between the conviction of an officer and their dismissal, and a further discretion between an acquittal and their reappointment; and
(c) is not silent on the effect of an acquittal or pardon, rather it provides a mechanism for reappointment in the event of dismissal if the former officer is pardoned or the conviction is set aside.
Lastly, the plaintiff’s construction of s 136(3) as conferring a status which cannot be challenged by the Chief Commissioner finds no support in the text or context of the provision, or the purposes and objects of the Act. If accepted, the construction would result in the manifestly unsatisfactory outcome sought by the plaintiff in this proceeding, namely that the Chief Commissioner is compelled to reappoint a person to Victoria Police about whose conduct and character they has grave concerns. The proceeding ought be dismissed.
The Act
I gratefully adopt the following overview of the Act.[39]
[39]Chief Commissioner of Police v IHF [2020] VSC 608 (‘Chief Commissioner of Police v IHF’).
Statutory framework
The purpose of the Act includes to modernise the law relating to the governance and regulation of Victoria Police.[40] The role of Victoria Police is to serve the Victorian community and uphold the law so as to promote a safe, secure and orderly society.[41] The role of the Chief Commissioner is to be responsible for the management and control of Victoria Police including, in particular, to be responsible for the general conduct, performance and operations of Victoria Police.[42] As provided in Part 7 of the Act, that responsibility encompasses maintaining proper standards of conduct through investigating and sanctioning breaches of discipline by police officers.
[40]The Act s 1.
[41]Ibid s 6.
[42]Ibid s 16.
Part 7 of the Act deals with discipline. A police officer commits a breach of discipline if, amongst other things, he or she is guilty of ‘disgraceful or improper conduct’ whether in his or her professional capacity or otherwise.[43] The Chief Commissioner may begin a preliminary investigation if he or she reasonably believes that a police officer may have committed a breach of discipline.[44] After such a preliminary investigation the Chief Commissioner may charge the officer with the commission of that breach of discipline if the Chief Commissioner reasonably believes that the police officer has committed such a breach.[45] The charge must conform to a number of specific requirements.[46]
[43]Ibid s 125 (1)(j).
[44]Ibid s 126.
[45]Ibid s 127 (1).
[46]Ibid s 128.
Having brought the charge, the Chief Commissioner must inquire into and determine that charge.[47] The Chief Commissioner may authorise a police officer, or a person employed under the Public Administration Act 2004 (Vic), to lay the charge against the police officer, or to inquire into and determine the charge, but not both.[48]
…
A police officer who is charged with a breach of discipline may appear at the inquiry into the charge or be represented by a person other than a legal practitioner.[49] If the person conducting the inquiry finds the charge has been proven that person may make one or more of a number of determinations, commencing with a reprimand through to dismissal.[50]
Part 8 of the Act deals with appeals and reviews from the various forms of decisions which may be made under the Act, including determinations of a charge of breach of discipline.
A police officer may apply to the Board for a review of a decision by a person authorised by the Chief Commissioner to dismiss the officer.[51] The Board is established under Part 12 of the Act. It has a number of divisions one of which is the Review Division.[52] For the purpose of conducting a review of a decision to dismiss a police officer the Board must be constituted by three members of the Review Division at least one of whom must be the President or a Deputy President of the division and another must be a legal practitioner of at least five years standing.[53]
In conducting a review the Board must have regard to the public interest (which includes the interest of maintaining the integrity of, and community confidence in, Victoria Police) and the interests of the applicant for review.[54] In a review of a dismissal the Board must affirm the decision unless it is satisfied that the decision is ‘harsh, unjust or unreasonable’.[55] If so satisfied, in the case of a review of a decision to dismiss a police officer, the Board may set aside the decision and, in substitution for it, make any other decision or determination that the person who made the decision could have made. Alternatively, it may set aside the decision and refer the matter for determination by the Chief Commissioner in accordance with any other directions or recommendations the board may give.[56]
The Board is bound by the rules of natural justice in conducting a review.[57] It must conduct the review with as little formality and technicality, and as much speed, as the requirements of the Act and the proper consideration of the subject matter permits.[58] It may regulate its own procedure and is not bound by the rules of evidence, informing itself on any matter as it sees fit.[59] It may also require evidence to be given on oath or affirmation.[60]
On a review, the applicant and the Chief Commissioner may appear and may be represented by any person other than a legal practitioner.[61] The Board must publish a statement of its reasons for decision unless it is satisfied it would not be in the public interest to do so.[62]
The Chief Commissioner must give effect to an order or decision of the Board on a review.[63]
[47]The Act s 129.
[48]Ibid s 130.
[49]Ibid s 131.
[50]Ibid s 132 (1).
[51]Ibid s 146 (1)(m).
[52]Ibid ss 203(c) and 208.
[53]Ibid s 148(1).
[54]The Act s 151.
[55]Ibid s 152(2).
[56]Ibid s 152(3).
[57]Ibid s 155.
[58]Ibid s 156.
[59]Ibid s 159(1).
[60]Ibid s 159(2).
[61]Ibid s 158(2).
[62]Ibid s 154A(1).
[63]Ibid s 165; Chief Commissioner of Police v IHF (n 39) [7]–[17].
Here, pt 3 and pt 6 of the Act are relevant. Division 5 of pt 3 provides for appointment of police officers, and reappointment. Part 6 provides for registration of police on the Police Profession Register by the Board. Section 105(1) provides that the Board may register an applicant if satisfied that they qualify for registration. Section 103(1) provides that a person is qualified for registration if:
Qualifications for registration
A person is qualified for registration under this Part if the person—
(a)is of good character and reputation; and
(b)has any qualifications and experience prescribed by the regulations for registration at a specified rank; and
(c)has the capabilities required to perform as a police officer at a specified rank.
Section 136 of the Act follows.
Charge found proven against officer
(1)If a police officer or protective services officer has been charged under the criminal law with an offence punishable by imprisonment (whether in Victoria or elsewhere) and the offence has been found proven, the Chief Commissioner may—
(a)do one or more of the following—
(i)reprimand the officer;
(ii)reduce the officer’s rank or seniority;
(iii)reduce the officer’s remuneration; or
(b)require the officer to be of good behaviour for a period not exceeding 12 months or on any other condition specified by the Chief Commissioner; or
(c)impose a fine not exceeding an amount that is 40 times the value of a penalty unit fixed by the Treasurer under section 5(3) of the Monetary Units Act 2004; or
(d)impose a period, not exceeding 2 years, during which the officer will not be eligible for promotion or transfer; or
(e)transfer the officer to other duties; or
(f)dismiss the officer.
(2)If the Chief Commissioner reduces the officer’s rank, the Chief Commissioner must determine the officer’s seniority in relation to other officers of the rank to which the officer has been reduced.
(3)If a police officer or protective services officer who has been dismissed under this section is subsequently pardoned or his or her conviction is subsequently set aside, the officer may be reappointed to Victoria Police at the rank and seniority he or she held before dismissal.
(4)On a reappointment under subsection (3), the officer is taken—
(a)to have continued in Victoria Police as if he or she had not been not dismissed; and
(b)to have been on leave without pay during the period during which the officer was not performing his or her duties because of the dismissal.
(5)A police officer or protective services officer is not entitled to any other leave credits for any period during which he or she is taken under subsection (4)(b) to have been on leave without pay.
(6)A fine imposed under this section may be recovered in the Magistrates’ Court as a civil debt or by deducting the amount from the officer’s pay or from any other amount payable to him or her by the State.[64]
[64](emphasis added)
Section 137 of the Act follows.
Action not to be taken against an officer twice
The Chief Commissioner must not take action against a police officer or protective services officer under Division 1 in respect of an act for which that officer has had action taken against him or her under section 136(1).[65]
[65](emphasis added).
Analysis
The relevant principles of statutory interpretation are not in dispute. The starting point of ascertaining the meaning of a statutory provision is its text. The meaning of a provision must be determined consistent with the language and purpose of other sections of the legislation and its purpose and historical context.[66]
[66]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381–2 [69]–[71].
There were a number of other statutes cited, however their text was different, and they do not aid in interpreting s 136(3).
Section 136(3) – beneficial provision for police officer
I find that s 136(3) should be construed beneficially for the police officer (or protective services officer) to whom it applies. It applies to a police officer who is dismissed pursuant to s 136(1)(f) as a consequence of a criminal conviction punishable by imprisonment and is subsequently pardoned or where the conviction, as is the case here, is subsequently set aside. The reasons for beneficial construction are as follows.
Firstly, s 136(3) is directed to the police officer with the words ‘the officer may be reappointed’. They are the object of the section. It is directed for the benefit of the police officer, namely, they may be reappointed. The mischief it seeks to address is a dismissal made solely on the basis of a criminal conviction later set aside or for which the police officer has been pardoned.
Section 136(3) may also be contrasted with s 136(1). The latter is directed to the Chief Commissioner providing the ‘Chief Commissioner may’ take certain actions. Unlike s 136(3), it gives the Chief Commissioner a range of actions they may take.
Section 136(3) may also be contrasted with the previous sub-section, namely s 136(2). Section 136(2) is directed to the Chief Commissioner and states that they must make a determination.
Secondly, the beneficial reading of s 136(3) is consistent with s 136(4), which provides for the consequences upon reappointment. Section 136(4) is not a discretionary section. It stipulates the consequences of reappointment, being continuity of service and for the reappointed officer’s absence to be treated as leave without pay.
Thirdly, s 136(3) provides that the officer may be reappointed ‘at the rank and seniority he or she held before dismissal’. This is consistent with giving the section a beneficial reading. The section does not provide for any punitive options, such as demotion by appointment to a lower rank. Following the conviction being set aside or a pardon, for the purpose of ascertaining rank and seniority, the conviction and dismissal are to be treated as if they did not occur.
Fourthly, the beneficial reading of s 136(3) is harmonious with other sections in the Act. Section 136(3) operates only in respect of dismissals pursuant to s 136(1)(f). The Act does not provide for natural justice in respect of the actions that the Commissioner takes pursuant to s 136(1)(f). Whilst I accept there is a common law obligation to provide natural justice,[67] the absence of a natural justice obligation in the Act concerning s 136 is significant. The High Court in the Chief Commissioner of Police for New South Wales v Eaton:[68]
The first respondent submitted that the absence of an obligation to give reasons in s 80(3) was not significant. This was because there was no duty at common law to give reasons. But this case does not concern the common law. It concerns statutory construction. The lack of any duty to give reasons affects how the statutory scheme is to be construed. The relevant comparison is not between s 80(3) and the common law. It is between s 80(3) and the duty to give reasons under s 181D(4) of the Police Act…
[67]O’Rourke v Miller (n 27) 352.
[68](2013) 252 CLR 1, 8 [14] (Heydon, Crennan, Kiefel and Bell JJ).
The statutory absence of the natural justice obligation in s 136 may be contrasted with div 1 of pt 7. It also applies where a police officer commits a breach of discipline in circumstances where they are charged with an offence and the offence is found proven: s 125(1)(n). Division 1 provides a disciplinary process that includes a preliminary investigation, charging the officer (in writing and with particulars), inquiry and the procedure upon inquiry, including, in s 131(3)(d) that ‘the person conducting the inquiry is bound by the rules of natural justice’.
Fifthly, the beneficial reading of s 136(3) is reinforced by s 137 which provides that disciplinary action cannot be taken pursuant to div 1 in respect of action that has been taken pursuant to s 136(1). Consequently if the police officer is dismissed pursuant to s 136(1), and later reappointed pursuant to s 136(3) after their conviction is set aside, no further disciplinary action may be taken in relation to matters giving rise to the conviction.
In Commissioner for Railways (NSW) v Cavanough (‘Cavanough’),[69] Rich, Dixon, Evatt and McTiernan JJ of the High Court stated:
…The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio. “The judgment reversed is the same as no judgment”…[70]
[69]Cavanough (n 22).
[70]Ibid 225 (Rich, Dixon, Evatt and McTiernan JJ).
In Rimanic v Business Licensing Authority (‘Rimanic’),[71] Callaway JA (Winneke P and Vincent JJA agreeing) stated:
[71](2002) 129 A Crim R 356 (‘Rimanic’).
Notwithstanding Mr Burke's able submissions, I can find no indication that parliament intended to abrogate the common law principle in Cavanough’s case as it bears on cancellation under s.28. I reject counsel’s submission that the ability to apply under ss.29B and 29C for permission to continue to hold a licence despite a conviction affords an adequate alternative remedy to the protection given by the common law. An innocent person, for that is the status of a person whose conviction is set aside, should not have to rely on the favourable exercise of an administrative discretion, even if it is reviewable by the Victorian Civil and Administrative Tribunal.[72] The legislature could have solved the problem of an appeal by the means adopted in s.50A(6)(b) but it did not.[73] It left the common law to operate. The reason may have been a desire that automatic cancellation under s.28 be delayed for no more than 30 days. Be that as it may, there is no public interest, including the interests of consumers, in visiting the very serious consequences of s.28[74] on a person who is innocent.[75]
The common law principle in Cavanough’s case is fundamental to a fair system of criminal justice. A wrong has been done to the person whose conviction is quashed or set aside and that person must be restored, so far as may be, to his or her former position.[76] That principle gives effect to a basic human right, so that the observations of Mason, C.J., Brennan, Gaudron and McHugh, JJ. in Coco v. R.[77] are in point:
“In Bropho v. Western Australia, Mason C.J., Deane, Dawson, Toohey, Gaudron and McHugh JJ. pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is:
‘”in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used”.’
At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.” (Footnotes omitted.)[78]
[72]See s.32.
[73]Similar considerations apply to the provisions on which counsel relied in the Second-Hand Dealers and Pawnbrokers Act and the Prostitution Control Act.
[74]See, for example, the penalties attached to unlicensed trading by s.7, to say nothing of the loss of business.
[75]It may be added that that result would not conduce, in accordance with the purpose of the Motor Car Traders Act expressed in s.1, to licensing being carried out efficiently and equitably. It would not be efficient, because a person who is not guilty of an offence would lose his or her licence, and it would obviously not be equitable.
[76]There is an analogy where a civil judgment is reversed: see such cases as National Australia Bank Ltd. v. Bond Brewing Holdings Ltd. [1991] 1 V.R. 386, Production Spray Painting & Panel Beating Pty. Ltd. v. Newnham [No. 2] (1992) 27 N.S.W.L.R. 659 and Meerkin & Apel v. Rossett Pty. Ltd.(No. 2) [1999] 2 V.R. 31.
[77](1994) 179 C.L.R. 427 at 437-438.
[78]Rimanic (n 71) [13]–[14].
Section 136(3) – power of Chief Commissioner to reappoint
Next, having established that s 136(3) must be construed beneficially, what is the nature of the Chief Commissioner’s power in relation to that reappointment? There is a controversy between the parties as to whether it arises directly from s 136(3) or from the general power of appointment of police officers in s 27. I find that s 136(3) confers a power on the Chief Commissioner (or their delegate) to reappoint a police officer for the following reasons.
Firstly, the words of the section ‘may be reappointed to Victoria Police’ ought be read literally. The police officer may be reappointed. The section does not specify who may reappoint, however, in the context of an Act, it is clearly the Chief Commissioner (or their delegate) who may reappoint. The Chief Commissioner is ‘responsible for the management and control of Victoria Police’, subject to the direction of the Minister under s 10: s 16(1). Section 15 provides the Governor in Council may determine by Order the number of police officers who may be appointed and the Chief Commissioner must comply with that Order. Construing the power to reappoint as the Chief Commissioner’s power (or that of their delegate) is consistent with div 5 of pt 3 which gives the Chief Commissioner power to appoint police officers (below the rank of Assistant Commissioner).
Secondly, s 136(4) refers to ‘a reappointment under subsection (3)’. This is consistent with the reappointment power residing in s 136(3).
Thirdly, ss 136(3)–(5) together provide a specific mechanism for reappointment. Section 136(3) speaks directly to the rank and seniority of the reappointed officer. Section 136(4) speaks directly to how the officer’s absence is to be considered and provides for continuity of service. Section 136(5) speaks directly to the treatment of leave and provides there should be no leave credits.
Fourthly, there is no section in the Act which speaks directly to a reappointment other than s 136(3). The Chief Commissioner has a general power to appoint in s 27(1). It provides that, subject to s 15, ‘the Chief Commissioner may appoint a person as a police officer below the rank of Assistant Commissioner’. It does not contain the word ‘reappointment’. It must be read with s 28 which provides that an appointment under s 27 is subject to ‘the following initial period of probation’ and specifies two years for a constable ‘in the case of an appointment at the rank of constable’ or otherwise one year. This period of probation is consistent with an initial appointment rather than a reappointment. I reject the plaintiff’s submission that a period of probation would not be inconsistent with reappointment under s 136(3). It is inconsistent with the beneficial reading of that provision. It is inconsistent with the concept of probation which speaks directly to the ‘initial period’ post appointment and then potentially a further period directly after that. Moreover, there are important differences in the rights that police officers have during and post probation. Section 28(4) provides that during probation the Chief Commissioner may terminate the appointment of a police officer under s 27 ‘at any time’.
The context of s 27, and particularly ss 29–30, reinforce its application to an appointment rather than a reappointment pursuant to s 136(3). Sections 29–30 relate respectively to the appointment of officers from other jurisdictions and appointment of former police. Section 27 itself does not expressly apply to either of those circumstances. Its application is extended by ss 29–30 which, unlike s 136(3), both expressly give the Chief Commissioner power to ‘appoint the person under s 27 if the person is registered on the Police Profession Register’. Unlike s 136(3), both ss 29 and 30 provide for a mechanism where the Chief Commissioner may request the Board’s advice as to whether the candidate meets, or will meet, the prescribed criteria ‘for appointment at the prescribed rank’: ss 29(2), 30(3).
Given the findings above, I reject the plaintiff’s submission a power to reappoint in s 136(3) would be superfluous because such a power is contained in s 27. Further, I reject the submission that the word ‘reappoint’ directs attention back to the initial appointment under s 27. As discussed above, s 136(3) contains a mechanism for reappointment. Section 27 does not.
The plaintiff submitted too that the use of the word ‘may’ in s 136(3) was not reflective of the conferral of a power but permissive or facultative. In Malika Holdings Pty Ltd v Stretton,[79] McHugh J stated:
The ordinary meaning of “may” is authorise or permit. Prima facie, it is a permissive or facultative expression. There is a presumption that in a statute it has this prima facie meaning. That presumption is often rebutted when the word is used to give a power to a court or judicial officer. As this Court said in Ward v Williams, jurisdiction and powers are usually conferred on judicial bodies to enable them to enforce rights and protect interests. Permissive language is often used, therefore, in conferring powers or jurisdiction on courts:
“because, although it is intended or contemplated that persons interested will be entitled to the remedy the tribunal is empowered to give, it is also intended, or at all events taken for granted, that the existence of the interest and the validity of the claim to the remedy of a person seeking it will be for the tribunal to determine.”[80]
[79]Malika Holdings Pty Ltd v Stretton (n 20).
[80]Ibid 299–300 [33] (citations omitted).
The same analysis applies here. Permissive language is used to confer power on the Chief Commissioner to reappoint pursuant to s 136(3).
Section 136(3) is expressed in passive voice rather than active voice. However, I think that does not matter here.[81] Nor should any significance be given to the absence of an express reference to the Chief Commissioner or the fact that there are other sections in the Act in which there are express conferrals of power. As discussed above, the Chief Commissioner (or their delegate) have the power to reappoint. Indeed, it was not contended that anyone else had that power. The dispute was where that power resided. Having found it lies in s 136(3), this leads to the next issue, which is the exercise of that power.
[81]See also: Morton (n 26) [40], [42] applying Dacakis (n 26) 536–7.
Section 136(3) – discretionary exercise of power
I find that s 136(3) gives the Chief Commissioner a discretion as to whether or not to reappoint. This is consistent with s 45(1) of the Interpretation of Legislation Act. It provides that where ‘the word “may” is used in conferring a power, that word shall be construed as meaning that the power so conferred may be exercised, or not, at discretion’.
In Finance Facilities Pty Ltd v Federal Commissioner of Taxation,[82] Windeyer J (Barwick CJ and Owen J agreeing) stated:
…While Parliament uses the English language the word “may” in a statute means may. Used of a person having an official position, it is a word of permission, an authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances it enables the doing, or abstaining from doing, at discretion, of the thing so authorized… Here the scope of the permission or power given is circumscribed. Conditions precedent for its exercise are specified as alternatives. The question then is, must the permitted power be exercised if one of those conditions be fulfilled?
This does not depend on the abstract meaning of the word “may” but of whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised–so that in those events the “may” becomes a “must”…[83]
[82](1971) 127 CLR 106.
[83]Ibid 134.
Here, I do not consider the ‘may’ in s 136(3) ought be construed as a ‘must’ for reasons discussed below.
Turning now to the nature of the Chief Commissioner’s discretion in s 136(3).
In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[84] Gleeson CJ, Gaudron and Hayne JJ stated:
“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result.” Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.[85]
[84]Coal and Allied Operations (n 19).
[85]Ibid 204–5 [19] (citations omitted).
Here, the Chief Commissioner’s discretion is confined by the Act. Firstly, it is confined by s 136(3). The Chief Commissioner may only reappoint the officer pursuant to s 136(3) if they have been pardoned or had their conviction set aside. The terms of the reappointment are confined too. If the officer is reappointed then it must be at the rank and seniority they held before dismissal, and, pursuant to s 136(4), their absence is treated as leave without pay and they are to be given continuity of service as if they had not been dismissed. In other words, restored to their previous position prior to dismissal.
Secondly, the discretion must be exercised consistently with s 8 of the Act. It establishes the role of Victoria Police in s 8, which includes, significantly, serving the community and upholding the law ‘so as to promote a safe, secure and orderly society’. Central to this, police must be of good character and reputation.
The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means – the primary and usual means – of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency…[86]
[86]Police Service Board v Morris (1985) 156 CLR 397, 412.
I cannot accept the plaintiff’s submission that s 136(3) has a deeming effect in respect of the police officer’s character and reputation. In exercising their discretion consistently with s 8, the Chief Commissioner must assess whether the police officer is of good character and reputation. However, consistently with the beneficial reading of s 136(3) above, the matters which form the subject of the charges upon which the police officer was convicted and which have been later set aside, must be disregarded in that assessment. This is also consistent with the common law principle expressed in Cavanough.
In Cavanough, a Commonwealth officer, who had been suspended from employment during a conviction for larceny, later had his conviction quashed. He was not paid during his suspension, and successfully sought payment for it. The High Court held that he was entitled to recover his unpaid salary ‘because, his conviction having been quashed, he cannot be considered ever to have been convicted and he cannot be deemed to have vacated his office’.[87] Of course, here, the facts are different. The plaintiff was dismissed from his employment and there are statutory provisions that are applicable. However, the exercise of the Chief Commissioner’s discretion in s 136(3) in a manner that disregards the charges upon which the plaintiff has been quashed is consistent with the High Court’s reference to the principle that upon reversal of conviction, the person charged is entitled:
…to be restored to all things which he may have lost by such erroneous judgment and proceedings, and shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him…[88]
[87]Cavanough (n 22) 224.
[88]Ibid 225.
In Rimanic, the Court of Appeal, referred to Cavanough’s case, including the passage above, and held:
...Starke, J. delivered a judgment to a similar effect on this point, concluding that the consequence of the order made by Quarter Sessions was that the respondent’s conviction “was obliterated, and, to use the language of the old forms, ‘altogether held for nothing’.”
...In the language approved by Rich, Dixon, Evatt and McTiernan, JJ., the appellants were entitled to be restored to their former position and to stand in every respect as if Mr Rimanic had never been charged with the offence of which he was convicted. To use the language of Starke, J., the conviction was obliterated and was to be altogether held for nothing.[89]
[89]Rimanic (n 71) [9]–[10] (citations omitted).
Further, it is consistent with s 137 for the Chief Commissioner to disregard the matters which form the subject of charges resulting in a conviction later set aside. Section 137 provides that disciplinary charges cannot be laid against an officer ‘in respect of an act for which that officer has had action taken against him or her under s 136(1)’.
On the other hand, consistently with s 8, supervening conduct which would be contrary to s 8, must be considered. This is common ground between the parties. Indeed, if the Chief Commissioner makes the assessment that the officer is not of good character and reputation, then the Chief Commissioner ought exercise their discretion not to reappoint. As the defendant contends, this question of good character and reputation is a factual question.
For completeness, I do not consider that the application of s 136(3) to a police officer pardoned affects the analysis above. It must be recalled this is beneficial legislation.
Finally, the history of the section is consistent with it being enacted for the benefit of the police officer and also providing the Chief Commissioner with a discretionary power as to whether to reappoint. The Explanatory Memorandum to the Victoria Police Bill 2013 states that s 136 ‘re-enacts the effect of s 80 of the Police Regulation Act’.[90] During Committee debate of the Police Regulation (Discipline) Bill 1993 in the Legislative Council, an amendment was proposed to what would become s 80(2) of the Police Regulation Act 1958, to insert ‘must’ in place of ‘may’, with Hansard recording the following:
[90]Explanatory Memorandum, Victoria Police Bill 2013 (Vic) 52.
Hon. B. E. DAVIDSON (Chelsea) — I Move:
13. Clause 10, page 11, line 27, omit “may” and insert “must”.
This amendment is a little different. The clause currently states:
If a member who has been dismissed under this section is subsequently pardoned or the conviction of the member is subsequently quashed or otherwise nullified, the member may be re-appointed to the force at the rank the member held before dismissal.
We say that the word “may” should be removed and the word “must” should be inserted instead. Bearing in mind the Minister’s previous argument about the word “must”, obviously it is our intention that they must be reappointed and obviously with their consent. I do not mean that they should go back to their positions if they do not want to. I make that perfectly clear.
Amendment negatived.[91]
[91]Victoria, Parliamentary Debates, Legislative Council, 19 May 1993, 1067 (B. E. Davidson).
The reference to ‘the Minister’s previous argument about the word “must”’ appears to relate to statements made in the context of a proposed amendment to s 79(4) – which deals with what occurs where a person conducting an inquiry into misconduct finds the charge not proved. The proposed amendment sought to add the following additional paragraph to s 79(4):
(d)if the member has been transferred to other duties, the member must be immediately returned to the duties from which he or she was transferred.[92]
[92]Ibid 1063.
In the following exchange, the Minister was asked the government’s position on that amendment (which was ultimately unsuccessful):[93]
Hon. D. A. NARDELLA (Melbourne North) — I would be interested to know the government’s position on the insertion of this clause. If, for instance, a person in the Drug Squad were charged with some offense, his or her return to the Drug Squad may not be favourably considered. That is a hypothetical situation, but I would be interested to know why the government would not agree to the amendment.
Hon. W. R. Baxter (Minister for Roads and Ports) — Mr Nardella has hit the nail on the head; he has explained why the amendment is inappropriate. I invite the Committee to examine the wording of the amendment, which states “the member must be immediately returned to the duties form which he or she was transferred”. There may be circumstances where it would be entirely inappropriate for that to happen. A member may not want to be transferred back to the forming posting because he or she is happy in the new posting. Nothing in the Bill precludes the member from being transferred back if it is his or her desire or the chief commissioner’s desire of a combination of both. It is inappropriate to make it mandatory for the member to be transferred back to the original positon. It is the government’s view that that would not be in the best interests of the member.
[93]Ibid 1064.
Did the Chief Commissioner’s delegate misconstrue s 136(3)?
By way of background, it must be recalled that the Chief Commissioner’s delegate made an election not to bring charges under div 1 and conduct a disciplinary inquiry in a process in which the Act mandates there must be natural justice. Moreover, there were rejections of the plaintiff’s applications to adjourn the hearing and determination of the s 136 Inquiry and later the Board’s review of it until after the determination of his appeal of the criminal conviction. Rather, the Chief Commissioner’s delegate elected to rely upon the conviction and the plaintiff was dismissed pursuant to s 136(1) and the Board’s review upheld the dismissal.
The Chief Commissioner’s delegate misconstrued s 136(3) by taking into account the matters that led to the charges upon which the plaintiff was later acquitted. Their correspondence stated:
The Chief Commissioner is entitled to consider aspects of the Applicant’s character that were revealed in the matters that led to the Applicant originally being charged with criminal offences.[94]
[94]Exhibit ‘TRF-16’ to the first Freeman affidavit, 2.
Upon the plaintiff’s representative disputing this, the Chief Commissioner’s delegate’s response included the following:
Response
I again invite the Applicant to provide any information or comment before a final decision is made regarding his reappointment. However on this occasion I request that the response be limited to addressing his character as a natural person as it was revealed in the matters leading up to his being charged with criminal offences as described in Annexure 1.[95]
[95]Exhibit ‘TRF-18’ to the first Freeman affidavit, 2.
The correspondence from the Chief Commissioner’s delegate containing the decision not to reappoint, states in part:
I have now twice previously invited the applicant to address my concerns regarding his character as it was revealed through his conduct on 25/12/2014 and in the preparation and filing of proceedings against [name] and [name]. To assist with that process in my letter dated 27 /8/19 I referenced a list of points which I referred to as factual matters. You have chosen not to address any of my concerns but to instead argue that any reference whatsoever to the points listed was incorrect at law.
The only indication that the applicant considered the list was his denial of any criminality or misfeasance on his part with regards to any of the points. This blanket denial without any further evidence or submission does not allay my concerns regarding his character.
Accordingly, I have made the decision not to reappoint the applicant in accordance with the discretion set out at s136(3). The reason for this decision is that I am not satisfied that the applicant is of good character and reputation.
Assessing good character and reputation involves examining past behaviour with respect to Victoria Police's values. The applicant’s behaviour in the matter that lead to his dismissal did not accord with Victoria Police’s values of respect, professionalism and integrity. The particulars of that behaviour were set out in Annexure 1 of my letter dated 27/8/2019 and include the exercising of poor judgement in invoking and exercising a power of search, the use of excessive force in undertaking that search and the preparation of misleading statements that were designed to cover up his failings. Rather than admit any failings, the applicant was prepared to see two children falsely charged with serious offences. The fact that the applicant was acquitted of associated criminal charges on appeal does not substantially reduce the gravity of that behaviour.[96]
[96]Exhibit ‘TRF-20’ to the first Freeman affidavit.
Conclusion
By misconstruing s 136(3), the defendant made a jurisdictional error. Consequently, their decision not to reappoint the plaintiff will be quashed. The plaintiff’s application to be reappointed will be remitted to be determined according to law.
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