McGinn v Condon

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McGinn v Condon [2019] QCAT 15

PARTIES:

LINDSAY GORDON McGINN

(applicant)

v

ASSISTANT COMMISSIONER MIKE CONDON

(respondent)

APPLICATION NO/S:

OCR025-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

29 January 2019

HEARING DATE:

29 August 2018

HEARD AT:

Brisbane

DECISION OF:

Member Barlow QC

ORDERS:

1.   The respondent’s decision be set aside.

2.   The disciplinary matters be dismissed.

CATCHWORDS:

POLICE     –     INTERNAL     ADMINISTRATION     – DISCIPLINE AND DISMISSAL FOR MISCONDUCT

– QUEENSLAND – Whether conduct of police sergeant instructor at and concerning recruit driving course was police misconduct

Crime and Corruption Act 2001 (Qld), s 219A, schedule 2

Police Service Administration Act 1990 (Qld), s 7.4, s 14

DA v Deputy Commissioner Stewart [2011] QCATA 359 applied

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S McLeod, instructed by Ms B Wadley

REASONS FOR DECISION

Introduction

1. The applicant is a Sergeant in the Queensland Police Service (QPS). In December 2014 and January 2015 he was stationed at the service’s Driving Skills Section as a facilitator and coordinator of police recruit driver training.

1. The respondent is Assistant Commissioner, Operations Support Command, in the QPS. In September 2016, Asst Cmmr Condon directed Sgt McGinn to attend a disciplinary hearing on a matter of misconduct. It was alleged that he had designed and delivered a recruit driver training course that was too difficult for the majority of recruits to pass and that he had inappropriately attempted to influence the feedback provided by recruits in their course critiques.

2. At the conclusion of the disciplinary process,  Asst  Cmmr  Condon  decided  that Sgt McGinn had engaged in misconduct, as charged, and formally reprimanded him.

3. In this tribunal, Sgt McGinn seeks review of that decision.  He contends that some  of the conduct alleged was not proved, the conduct that was proved does not amount to misconduct and the sanction was excessive.

Jurisdiction, relevant legislative terms and the tribunal’s role

1. The tribunal’s jurisdiction to review Asst Cmmr Condon’s decision is conferred on it by s 219G of the Crime and Corruption Act 2001 (Qld) (CC Act) and s 17(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The former section gives a right to a “prescribed person” (which includes a member of the police service – see dictionary and s 50(3)((a)(i)) to apply to QCAT for review of a reviewable decision. “Reviewable decision” is relevantly defined, in s 219BA of the CC Act, as “a finding mentioned in the Police Service Administration Act 1990 [PSA Act], section 7.4(2A)(b) that corruption is proved against an officer”. The dictionary to the CC Act defines “corruption” as “corrupt conduct or police misconduct”. “Police misconduct” is in turn relevantly defined as “conduct, other than corrupt conduct, of a police officer that … is disgraceful, improper or unbecoming a police officer; or … does not meet the standard of conduct the community reasonably expects of a police officer”.1

2. At this juncture I emphasise that, despite the tribunal’s jurisdiction…