O'Brien v Assistant Commissioner Gollschewski, Queensland Police Service

[2013] QCAT 155

CITATION: O’Brien v Assistant Commissioner Gollschewski, Queensland Police Service [2013] QCAT 155

PARTIES:	Kelly O’Brien (Applicant)
v
Assistant Commissioner Gollschewski, Queensland Police Service (Respondent)

APPLICATION NUMBER: OCR264-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: 15 March 2013

HEARD AT: Brisbane

DECISION OF: Michelle Howard, Member

DELIVERED ON: 21 March 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. That the application for removing or striking out of various documents filed by the respondent pursuant to section 21(2) of the Queensland Civil and Administrative Tribunals Act 2009 is dismissed.

CATCHWORDS:

PROCEDURE- Review of Police Disciplinary Decision – whether documents provided are in accordance with requirements of s 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 and s 219H of the Crime and Misconduct Act 2001

Crime and Misconduct Act 2001, s 219H
Queensland Civil and Administrative Tribunal Act 2009, s 21(2)

Aldrich v Ross [2001] 2 QdR 235
Groufsky v CMC [2012] QCATA 188

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr C R Gnech, Office of the Queensland Police Union Solicitor

RESPONDENT: Mr S A McLeod, Counsel, instructed by Queensland Police Service

REASONS FOR DECISION

1. Ms O’Brien has filed an application to review a disciplinary decision of Assistant Commissioner Gollewschski.

2. A review must be conducted by the tribunal under s 219H of the Crime and Misconduct Act 2001 (CMC Act). That is, review ‘is by way of rehearing on the evidence given in the proceeding before the original decision-maker.’: CMC Act s219H(1). This is subject to the admission of new evidence upon the giving of leave by the Tribunal: CMC Act s 219H(2).

3. The matter was listed for determination of two interlocutory issues raised by Ms O’Brien. The first relates to the documents the Tribunal is entitled to receive in the review proceeding. The second issue, which ultimately was not pressed at this preliminary stage of the proceeding, relates to a recommendation sought to provide guidance to Queensland Police Service decision-makers about their obligations to accord natural justice to officers subject to disciplinary proceedings. [1]

   [1]Recommendations may be made under Queensland Civil and Administrative Tribunal Act 2009, s 24(3).

4. Ms O’Brien seeks orders for the removal or striking out of some documents filed by the Assistant Commissioner in response to an order of the Tribunal, which in essence directed compliance with s 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Section 21(2)(b) requires the decision-maker in review proceedings to provide to the Tribunal a copy of ‘any document or thing in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the decision’.[2]

   [2] QCAT Act, s21(2)(b).

5. The bundle of documents provided contains a number of documents which the decision-maker had and took into account in making the decision, but which Ms O’Brien was not aware were in his possession and were not given to her. In particular, she was not aware that updated Human Resources training documentation which the decision-maker had referred to off-duty drink-driving as an example of misconduct. She says that she was denied natural justice. She would have made submissions about this issue but was not given the opportunity. Because it was not given to her, she says that the Tribunal should not have it (and various other documents) on the review application.

6. The argument advanced relies upon a construction of s 219H(1) which requires that the word ‘given’ in the context of ‘given in a proceeding before the decision-maker’ means given to the officer subject to the disciplinary proceeding. She submits that s 39 of the Acts Interpretation Act 1954, about service of documents may provide some guidance about the meaning of given. She argues that the hearing can only be what happened between both parties.

7. The Assistant Commissioner acknowledges that the documents which he took into account in making his decision which are identified by Ms O’Brien were not provided to her before he made his decision. He submits that a denial of natural justice will not necessarily have occurred in respect of each document, because particular documents may not be adverse to Ms O’Brien. He submits that ‘given’ in s 219H, should be construed broadly and not in the restrictive manner which Ms O’Brien advances. If Ms O’Brien’s argument is correct, he submits that the Tribunal would be placed in the position of making its review decision in a vacuum. Further, he submits that if there has been a breach of natural justice, this has been overcome by the review proceeding which is conducted de novo.[3]

   [3]        Aldrich v Ross [2001] 2 QdR 235.

8. He says that a decision-maker is entitled to make enquiries which result in documents being provided to him or her which are then taken into account. Ms O’Brien agrees that the decision-maker can make further enquiries, but says the difficulty is that the resulting material was not ‘given’ in the proceeding.  Therefore, she says she was in the position of responding to the charge against her in a vacuum.

9. While acknowledging that the Tribunal may settle the record, the Appeal Tribunal recently held (on an application to remove a police officer service record from the bundle of documents in disciplinary review proceedings), that the evidence which is to be taken into account is ultimately a matter for the Tribunal as constituted at the final hearing.[4] It considered it undesirable that another Tribunal make interlocutory orders excluding evidence from the eventual determination. That said, I do not propose to make orders which exclude material from consideration at the final hearing.

   [4]        Groufsky v CMC [2012] QCATA 188.

10. In my view, the meaning of s 219H(1) is clear. The review must be conducted on the basis of the material given in the proceeding which was before the decision-maker. Irrespective of whether the person subject to the disciplinary proceeding was given the material, if it was before the decision-maker, it must be provided to the Tribunal pursuant to s 21(2) of the QCAT Act. Further, the Tribunal is entitled under s 219H(1) of the CMC Act to take that material into account on the rehearing.

11. To say that a failure by the original decision-maker to provide natural justice results in a limitation of the material which the Tribunal can consider is to conflate two essentially unrelated concepts. It seeks, in effect, to perpetuate an error allegedly made by the original decision-maker. The Tribunal must conduct its review according to law. Therefore, even if it was appropriate to consider removing documents from the record at this interlocutory stage of the proceedings, I would not do so.

12. In making these observations, I do not diminish the significance of the  responsibility of original decision-makers to ensure that natural justice is afforded to parties.  Although failure of an original decision-maker to provide a person subject to disciplinary process with every document they have in their possession may not on every occasion result in a denial of natural justice, if it contains adverse credible relevant and significant material, it will do so. It does appear to be the case here.

13. However, the fact that an original decision-maker denied a person natural justice does not have the consequence that the Tribunal is not entitled to receive the documentation considered by the original decision-maker on the rehearing at which its responsibility is to conduct a review of the merits of the matters before it and reach the correct and preferable decision.[5] It clearly is entitled upon rehearing to all of the material the original decision-maker had before him or her. 

    [5] QCAT Act, s20.

14. The Assistant Commissioner argues that s 21(2) of the QCAT Act, because of its breadth entitles or requires the original decision-maker to provide additional documents which the decision-maker did not have and may not have existed at the time of the making of the reviewable decision, as may be relevant to the Tribunal’s review of the decision. Strictly, following the withdrawal by the decision-maker by agreement (on the basis that it is not relevant rather than that it was not before him at the relevant time) of the one document[6] in the bundle which was not before him when making the decision, this issue does not arise in this proceeding.

    [6]        A letter which came into existence following the making of the original decision.

15. However, I make the observation that it appears that s 219H of the CMC Act may have modified the requirements in s 21(2) of the QCAT Act, as provided for in ss 6(7) and 7(2), 7(3) and 7(4) of the QCAT Act. That is, the breadth of documents generally required under s 21(2) have been modified because of the limited nature of the review hearing, (that is, rehearing on the evidence before the original decision-maker) than applies in the review jurisdiction under the QCAT Act when an enabling Act does not make specific provision which may limit the material to be received. However, I do not decide this issue.

16. It follows that Ms O’Brien’s interlocutory application concerning the documents contained in the bundle is dismissed.