O'Brien v Commissioner of Police
[2024] QSC 82
•16 May 2024
SUPREME COURT OF QUEENSLAND
CITATION: O’Brien v Commissioner of Police [2024] QSC 82 PARTIES: BRETT MICHAEL O’BRIEN
(applicant)
v
COMMISSIONER OF POLICE
(respondent)FILENO: BS 13024 of 2022 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court DELIVEREDON: 16 May 2024 DELIVEREDAT: Brisbane HEARINGDATE: 31 March 2023 JUDGE: Sullivan J ORDER: The application is dismissed. CATCHWORDS: ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY - where the
applicant applied to join the Queensland Police Service - where the applicant was previously a police officer employed with the Gold Coast Water Police - where the applicant was previously investigated for two matters relating to alleged misconduct – where the decision-maker refused the application - where the applicant seeks a statutory order of review on three grounds – whether the applicant was denied natural justice – whether procedures required by law were not observed – whether there was evidence or other material to justify the making of the decision
Acts Interpretation Act 1954 (Qld), s 27B
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judicial Review Act 1991 (Qld), s 20, s 24
Police Service Administration Act 1990 (Qld), s 4, s 5, s 5AA Police Service Administration (Discipline Reform) and Other Legislation Amendment Bill 2019, explanatory notes (Qld) Police Services Administration Regulation 2016 (Qld), s 7Aldrich v Ross (2001) 2 Qd R 235
Australian Retailers v Reserve Bank (2005) 228 ALR 28 Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225
Cutler v Commissioner of Police Service [2001] QSC 161 Huntington v State of Queensland (Queensland Health) [2022] QIRC 290
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Border Protection v Stretton
(2016) 237 FCR 1Morier v Deputy Commissioner Conder Misconduct Tribunal Queensland TA No. 1 of 2003
O’Brien v Commissioner of the Queensland Police Service
[2021] QSC 349
O’Rourke v Miller (1985) 156 CLR 342
Police Service Board v Morris (1985) 156 CLR 397, 412
Sunchim Pty Ltd v Commissioner of Taxation [2010] FCA 21COUNSEL:
The applicant appeared on his own behalf M Nicolson for the respondent
SOLICITORS: The applicant appeared on his own behalf Queensland Police Service for the respondent
Introduction
The current proceeding was commenced by way of an originating application on 25 October 2022. It is an application for a statutory order of review made pursuant to s 20 of the Judicial Review Act 1991 (Qld) (“the JR Act”).
The decision involves an application by Mr O’Brien to be appointed a police recruit in the Queensland Police Service (“QPS”).
The Commissioner of Police has the power to make a decision in relation to such an application pursuant to s 7(f) of the Police Services Administration Regulation 2016 (Qld). This decision is one which is able to be delegated by the Commissioner of Police pursuant to s 4.10(2) of the Police Service Administration Act 1990 (Qld) (“the PSA Act”).
The PSA Act has a number of provisions which concern the decision-making process for such an application.
Section 5.2(2) of the PSA Act relevantly provides as follows:
5.2 Appointment to be on merit on impartial procedures
…
(2) A decision to appoint a person…as a police recruit…must be made by fair and equitable procedures that—
(a) include inviting applications and selection on the basis of the merit of applicants
…
Section 5AA.12 of the PSA Act relevantly provides as follows:
5AA.12 Particular persons to be advised if person unsuitable
(1) If, because of information relied on by the commissioner under this part, the commissioner considers a person…may not be suitable to be…engaged by the service, the commissioner must, before deciding the person is not suitable—
(a) disclose the information to the person; and
(b) give reasons why the commissioner considers the person may not be suitable to be, or continue to be, engaged by the service; and
(c) allow the person a reasonable opportunity to make representations to the commissioner about the information.
…
(3) If, after considering any representations made under subsection (1)(c), the commissioner decides the person is not suitable to be…engaged by the service, the commissioner must give the person a written notice stating that the person is not suitable to be…engaged by the service.
…
Prior to the current decision the subject of this review, there had been three other prior decisions made by the Commissioner of Police, via a delegate, which had each refused the application for the appointment of Mr O’Brien as a police recruit. On each of those three occasions the relevant decision was set aside and remitted to the Commissioner for further re-determination.
The last of those three prior decisions was the subject of a decision of this Court in O’Brien v Commissioner of the Queensland Police Service [2021] QSC 349, by his Honour Justice Kelly.
The fourth and most recent decision was made on 27 September 2022 by Assistant Commissioner Scanlon, as delegate for the Commissioner, and refused the application.
It is this fourth decision which is the subject of this current proceeding.
Turning then to the application itself. Mr O’Brien’s application seeks an order of review based on three grounds:
(a)Breach of the rules of natural justice (s 20(2)(a) of the JR Act);
(b)Procedures that were required by law were not observed (s 20(2)(b) of the JR Act);
(c)No evidence or other material to justify the making of this decision (s 20(2)(h) of the JR Act).
A fourth ground was raised in written submissions, namely that the decision was unreasonable.
Only the first, second and third grounds were pressed. Mr O’Brien expressly identified that he no longer pressed the fourth ground.
Factual background to the decision
Mr O’Brien had been a member of the QPS from 1991 until his medical retirement in 2008. Prior to his leaving the QPS, there had been two relevant events that had occurred which involved Mr O’Brien. Each of these events had been the subject of internal investigations, which ultimately led to recommendations being made for disciplinary charges to be laid against Mr O’Brien.
Mr O’Brien became ill and eventually retired from the QPS before any disciplinary hearing could occur in respect of those recommended disciplinary charges. Consequently, those recommended disciplinary charges were never the subject of a determination within a disciplinary proceeding.
The first event involved an overpayment of wages into Mr O’Brien’s bank account for the pay period 1 November 2003 to 14 November 2003 (“the Overpayment Incident”). The second event had involved a marine incident, which occurred on the Gold Coast on 18 April 2004 (“the Marine Incident”).
It is necessary to provide some more detail in respect of each of those events.
The Overpayment Incident
The Overpayment Incident involved an amount of $7,365.16 being paid into Mr O’Brien’s bank account that he was not entitled to. A portion of that amount was deducted for tax, so the extra amount received in Mr O’Brien’s bank account was approximately $4,000.
On 26 April 2005, a complaint was received from an Inspector, raising concerns in relation to the conduct of Mr O’Brien in relation to the overpayment. As a result of that complaint, the Ethical Standards Command (“ESC”) of the QPS caused Detective Senior Sergeant Millard to investigate the complaint. This investigation included Detective Senior Sergeant (“DSS”) Millard interviewing Mr O’Brien, and a number of other police officers who were stationed with Mr O’Brien at the Gold Coast Water Police, at or about the time the overpayment was made.
As a result of this investigation, DSS Millard made recommendations via a letter dated 24 May 2005. The letter provided, inter alia, as follows:1
“8. Matters for Consideration
…
8.2There is no evidence at this time of the subject officer stating to any person that he had no intention of repaying the overpayment.
8.3There is evidence from the subject officer that he was aware of the overpayment at the time of receiving his pay slip in 2003.
This portion of the letter from DSS Millard is precisely replicated, complete with any typographical and grammatical errors.
After not being contacted by the QPS following his alleged advising of them by telephone, the overpayment has been forgotten by the subject officer until he became aware of this investigation.
8.4No attempt was made by the QPS to notify the subject officer or make a demand for repayment until 27 October, 2005. Further to this the overpayment was a result of the QPS payroll section not the subject officer.
8.5Following contact being made with the subject officer, arrangements were made to repay the outstanding amount at
$100 per day which has occurred since 27 October, 2005.
8.6I would submit there is no evidence to substantiate any criminal offence being committed. There were no fraudulent claims made by the subject officer.
8.7...In this case I would submit the subject officer should have continued to follow up with the QPS.
9. Recommendations
9.1The subject officer has not shown any intention to not repay the money however; I would submit that ethically he should have made further inquiries with the QPS at the time.
9.2I would recommend that due to the necessary arrangements now being in place to retrieve the overpayment and that there was no intent by the subject officer to defraud the QPS that this matter could be resolved by Managerial Guidance.
…”
It can be seen from the letter that DSS Millard did not recommend that the complaint proceed to a formal disciplinary hearing.
The recommendations referred to above were the subject of consideration by a Superintendent Pointing. On 4 April 2006, Superintendent Pointing provided a memorandum to the Assistant Commissioner of the South Eastern Region. This memorandum recommended that the complaint progress to a formal disciplinary hearing. It relevantly provided as follows:2
“…
2. Investigations have been conducted by Detective Senior Sergeant Graeme Millard (3584) and he has provided a comprehensive report on the matter. Investigations indicate that Sergeant O'Brien received an overpayment for the fortnight ending 14 November 2003 due to a discrepancy regarding higher duties performed by Sergeant O'Brien. The subject member indicated that different overpayments had occurred on approximately 6
The portions of the memorandum from Superintendent Pointing are precisely replicated, complete with any typographical and grammatical errors.
occasions while had had performed duty at the Gold Coast Water Police with all previous amounts repaid.
3. The subject member was aware of the subject overpayment when he viewed his pay advice at the conclusion of the fortnight ending 14 November 2003. Sergeant O'Brien indicated that after about a month and not hearing anything from the Service about the overpayment he contacted an unknown representative of Human Resources in Brisbane or on the Gold Coast and asked for the matter to be examined. The subject member took no further action to pursue this matter.
4. The subject officer indicated that his partner suffered a miscarriage in December 2003 and he forgot about the matter until contacted by the investigating officer in May/June 2005….
5. The investigation concluded no criminal offence has been committed by Sergeant O'Brien. I concur with this view ...
6. It is apparent that the subject officer was duty bound to continue in his efforts to ensure suitable notification of the payment to ensure appropriate action was taken for the repayment of the money overpaid. I note that Section 9.2.4.2 (Allowances – Police Officers) of the Human Resource Management Manual relevantly states: Police officers are individually responsible for checking their fortnightly pay advice and… advising their officer in charge of receipt of an allowance to which they are not entitled… and advising their officer in charge of an overpayment which has occurred due to receipt of a payment to which they are not entitled.
7. I consequently recommend that disciplinary action for misconduct be commenced against Sergeant O'Brien. The recommended wording of the charge being:
That between November 2003 and June 2005 at the Gold Coast your conduct was improper in that you:
(a) Failed to make all reasonable efforts to provide advice to your officer in charge of an overpayment of $7365.16 for the fortnight ending 14 November 2003 which has occurred due to receipt of an overpayment to which you were not entitled, such advice being made with a view to commencement of recovery action for the said overpaid allowances.
Section 9.2.4.2 (Allowances – Police Officers) of the Human Resource Management Manual and sections 9(1)(b) and 9(1)(c) of the Police Service (Discipline) Regulations 1990.
8. Given the large sum of money I consider this matter to be of a serious nature and recommend that it progress to a disciplinary hearing before a prescribed officer of the rank of Assistant Commissioner.
…”
The matter was then the subject of further consideration by the Acting Assistant Commissioner of the South Eastern Region, who was Assistant Commissioner Davey. On 18 April 2006, the Assistant Commissioner delivered his own recommendations to the Assistant Commissioner, Ethical Standards Command (Assistant Commissioner Stewart) via a memorandum. This recommendation was for the complaint to be dealt with by managerial guidance and not by a formal disciplinary process. It provided as follows:3
“…
Detective Senior Sergeant Millard’s report is comprehensive and inclusive of all aspects of the complaint.
…
Detective Senior Sergeant MILLARD has made extensive and exhaustive inquiries in relation to this matter. Police officers were interviewed who indicated they had heard the subject officer talking about an overpayment, however they were unsure if this matter was the one he was referring to. The subject officer told Detective Senior Sergeant MILLARD the first he actually became aware of this overpayment was around May/June 2005.
The subject officer has indicated he had often been the subject of overpayments from [the QPS] Finance Section. This is a significant point, as the matter of overpayments to police officers is well known and has been raised by the Queensland Police Union (QPU) with the QPS on many occasions. …
The subject officer, when interviewed, indicated the amount of money involved in the overpayment, although seemingly large on first appreciation, was deposited into an overdraft business account he shared with his (then) partner that had a balance of (negative)
$400,000.00 which varied when pays for each of them and rental property income was deposited on a regular basis. The subject officer indicated that this amount of money at first glance did not raise a suspicion that there had been an overpayment.
…
The subject officer has readily co-operated with officers from the QPS Finance Section, Partner One and he has entered into an agreement whereby the monies are being repaid on a fortnightly basis. …
Detective Senior Sergeant MILLARD has recommended the subject officer receive managerial guidance in relation to this matter.
Superintendent B POINTING … has provided an overview report, however the Superintendent has recommended the subject officer face a disciplinary hearing at Assistant Commissioner level for the inappropriate behaviour identified. The Superintendent has viewed
These portions of the memorandum from Assistant Commissioner Davey are precisely replicated, complete with any typographical and grammatical errors.
this matter more seriously and cites a section of the Human Resource Manual that indicates police officers are individually responsible for checking their fortnightly pay advice for correctness and then causing the relevant changes to be made on a timely basis should there be any discrepancy detected.
I have carefully considered the report of Detective Senior Sergeant MILLARD, his recommendations and also the overview report of Superintendent POINTING and his recommendations therein.
I do not support the view of Superintendent POINTING that this matter warrants the serious further attention of a disciplinary hearing at Assistant Commissioner level. My rationale for this decision includes the following.
There is no evidence that the subject officer actually did know of the specific overpayment at the time;
There is no evidence the subject officer used the additional monies for any extra purpose, for example a holiday or purchase and there is no evidence to suggest any large withdrawal occurred from his banking account after this overpayment;
There is ample evidence to support the version of the subject officer indicating the overpayment was paid into a banking account that reflected a large overdraft figure and that this amount of money would not necessarily have such a profound meaning when viewed with other funds being paid in and paid out over time;
There is no evidence to suggest the subject officer at any time stated he did not intend paying the monies, subject of the overpayment, back to the QPS;
There is ample evidence that the subject officer had received overpayments in the past;
…
The subject officer has readily cooperated with the QPS Finance Section Partner One to have the monies repaid in accordance with the provisions of Certified Agreement EB4B since the overpayment has been detected.
However, I support the view the subject officer did have responsibility to check his pay advice on a timely basis to ensure proper payments were being received by him.
I recommend the subject officer receive Managerial Guidance at District Officer (Superintendent) level to reinforce the provisions of the Human Resource Manual relating to the requirement of police officers to make appropriate checks of their pay advice to ensure proper payments are being received and to make timely arrangements with the Finance Section Partner One for the repayment of any overpayments in accordance with QPS policy and procedures.”
Finally, the matter was considered by Assistant Commissioner Stewart. Assistant Commissioner Stewart produced a responsive memorandum to the memorandum of Assistant Commissioner Davey. This memorandum was dated 12 May 2006. It relevantly provided as follows:4
“…
2. …The investigation report of Det Snr Sgt Millard, the report of Supt B Pointing and your recommendations have been considered.
3. This Command does not concur with your conclusion there is no evidence Sgt O'Brien actually knew of the specific overpayment at the time. The investigation established Sgt O'Brien was paid a single lump sum overpayment in the pay period 1 November 2003 to 14 November 2003 which equated to the amount of
$7365.00.
4. The investigation established that at least three officers at the Gold Coast Water Police became aware of the overpayment due to comments by the subject member. In paragraph 6.8 of Det Snr Sgt Millard’s report he states the subject member became aware of the overpayment when he opened his payslip around the end of the fortnight.
5. …
6. This Command considers there is sufficient evidence to prove Sgt O'Brien was aware at the time of the payment of the overpayment. Considering the significant size of this overpayment it would be reasonable to expect that a person receiving such a payment would take appropriate action to immediately rectify this overpayment.
7. The assertion of Sgt O'Brien that due to the size of his debts and his combined income the overpayment was easily forgotten is unreasonable. It is this Command’s contention that it is reasonable to expect that an overpayment of approximately 1/10th if the officer’s gross yearly salary would be something that would remain in his consciousness for an extended period of time. Had he in fact been underpaid by such a substantial amount there is little doubt he would have taken immediate steps to ensure his pay was rectified.
8. Considering the overpayment was not detected by Partner One no by any QPS audit system, it is reasonable to conclude that had the complainant not brought this matter to the attention of the Service, the subject member would have never repaid the amount…
9. The willingness of the subject member to repay monies is moot. Regardless of his willingness, recovery action would have been
These portions of the memorandum from Assistant Commissioner Stewart are precisely replicated, complete with any typographical and grammatical errors.
undertaken and he had little alternative but to undertake this course of action.
10. This Command does not consider that under the circumstances Sgt O'Brien has not exhibited the ethical behaviour expected of an officer of his experience. It is the view of this Command that the provision of managerial guidance would not be appropriate under the circumstances and would erode the confidence of the public. It is also the view of this Command that such managerial action would not be supported by the Crime and Misconduct Commission during any future audit.
11. This Command concurs with Superintendent Pointing that disciplinary action for misconduct be commenced against Sgt O'Brien for failing to comply with section 9.2.4.2 (Allowances – Police Officers) of the Human Resource Management Manual. It is recommended the prescribed officer be at the level of a Commissioned Officer.
12. Section 18.3.3 HRMM provides for a copy of the Direction to Attend a Disciplinary Hearing – Misconduct, including the date of the hearing to be e-mailed by the Prescribed Officer to ESC Discipline, where the format of the Notice and the appropriateness of the proposed charges will be overviewed. The Prescribed Officer will be advised of any suggested changes promptly by return e-mail.
13. Your advice in due course, as to the outcome of the disciplinary hearings together with appropriate notices, would be appreciated…” (Footnotes omitted)
This last memorandum represented the most senior and determinative consideration of the matter. It, of course, was not a final determination of the issues but represented a decision that the conduct should proceed to a formal disciplinary proceeding.
As identified above, a formal disciplinary proceeding did not eventuate due to Mr O’Brien being ill and ultimately his then retirement from the QPS.
The Marine Incident
I turn next to the Marine Incident.
This incident involved a single outboard motor powered vessel known as the AP Anderson, some six metres in length.
A Senior Constable (“SC”) Foessel had been previously directed by his Officer-in- Charge, a Senior Sergeant (“SS”) Day, not to master the AP Anderson solo.
At about midday on Thursday 18 April 2004, there was a significant marine incident involving the AP Anderson. At that time, only SC Foessel was present on and in charge of the vessel. On the day in question, Mr O’Brien had been rostered on with SC Foessel, however, Mr O’Brien had taken sick leave that day. Mr O’Brien gave SC Foessel permission to operate the AP Anderson solo. It is alleged that Mr
O’Brien granted this permission, despite being aware that SC Foessel had been given a direction to the contrary by the Officer-in-Charge. It is alleged that the Marine Incident had resulted from operator error on the part of SC Foessel when he crossed the wake of a larger vessel and was subsequently thrown overboard. SC Foessel was not wearing a safety lanyard which was available, and which would have automatically cut the motor to the vessel under such circumstances. As a result of his not wearing the lanyard, the vessel continued on crewless and at speed, narrowly missing another vessel before coming to ground on nearby Coomera Island.
As with the Overpayment Incident, there was an investigation and then a consideration of the matter by a number of people. First, Assistant Commissioner Davey provided a memorandum to Assistant Commissioner Stewart on 26 April 2006. It provided, inter alia, as follows:5
“…
This investigation addresses two allegations relating to Sergeant O'BRIEN namely that:-
On 18 April 2004 he countermanded a direction of Senior Sergeant DAY a superior officer and Officer in Charge of the Gold Coast Water Police, that Senior Constable FOESSEL was not to master the ‘A P ANDERSON’ solo until further advised by him without authority to do so; and
On 24 August 2004 he was untruthful to Sergeant Garth CRANK when interviewed by him when he stated that he was not aware that Senior Sergeant DAY had directed that Senior Constable FOESSEL was not to master the ‘A P ANDERSON’ solo.
Inspector O HORTZ of the South Eastern Region has conducted further investigations in relation to this complaint. Inspector HORTZ’s report is comprehensive and inclusive of all aspects of the complaint.
Inspector O HORTZ has interviewed a number of staff from the Gold Coast Water Police and also interviewed Senior Constable K FOESSEL the other subject officers of this original complaint. All officers interviewed have provided evidence to support the fact that a verbal direction was issued by the Officer in Charge of the Gold Coast Water Police, Senior Sergeant B DAY to the effect that Senior Constable FOESSEL was not to master the vessel ‘A P ANDERSON’ on a solo basis at any time.
From the investigation conducted it appears there is ample evidence to suggest Sergeant O'BRIEN was in fact aware of that, the aforementioned direction from Senior Sergeant DAY was in existence and that he disobeyed this direction.
Inspector HORTZ has further recommended two additional charges should be preferred against Sergeant O'BRIEN, that of untruthfulness
This portion of the memorandum is precisely replicated as it appears, complete with any grammatical and typographical errors.
to him (Inspector HORTZ) and that of incompetence/duty failure in the management of the Gold Coast Water Police in that he allowed Senior Constable FOESSEL to master the ‘A P ANDERSON’ on a solo basis when it was well known FOESSEL was not sufficiently proficient in his knowledge or operational expertise to do so.
Inspector P W BAKER, Professional Practice Manager for the South Eastern Region has overviewed this file and supports the recommendations and outcomes of Inspector HORTZ’s report.
Having reviewed all the material I support the recommendations of Inspectors BAKER and HORTZ.
I recommend this matter be referred back to this Region for a Disciplinary Hearing to be convened against Sergeant B O'BRIEN at Assistant Commissioner level.”
The above memorandum recommends the institution of disciplinary proceedings.
There was then a responsive memorandum from Assistant Commissioner Stewart to Assistant Commissioner Davey. This memorandum materially provided as follows:6
“…
3. From the evidence of Senior Sergeant Day and Senior Constable Foessel, it can be concluded that Sergeant O'Brien would have known that Senior Sergeant Day had directed that Foessel not master the vessel ‘A P ANDERSON’ solo. The existence of that order appears to be widely known among officers at the Gold Coast Water Police. There is sufficient evidence for Sergeant O'Brien to face disciplinary action for misconduct on 18 April 2004 for giving Senior Constable Foessel permission to master the Bessel ‘A P ANDERSON’ solo in contravention of Day’s direction and for untruthfulness to investigators on 24 August 2004 and 10 March 2006 when he stated he was not aware of Senior Sergeant Day’s direction regarding Foessel.
…
5. Having regard to the circumstances of the matter including comparative sanctions for the alleged untruthfulness, it is recommended the prescribed officer should be at the level of commissioned officer. It is noted the subject member is to face a disciplinary hearing before a commissioned officer for another matter. It may be appropriate for all matters to be dealt with at the same hearing.
6. While the wording of disciplinary charges is at the discretion of the prescribed officer, section 18.3.3 of the Human Resource Management Manual (HRMM) provides for a copy of the Direction to Attend a Disciplinary Hearing –
This portion of the memorandum is precisely replicated as it appears, complete with any grammatical and typographical errors.
Misconduct, including the date of hearing, to be emailed by the prescribed officer to ‘ESC Discipline’ where the format of the Notice and appropriateness of the proposed charges will be overviewed. The prescribed officer will be advised of any suggested changes promptly by return email.
7. This Command would appreciate your advice in due course as to the outcome of any disciplinary action taken.
…”
Assistant Commissioner Stewart’s memorandum did not represent a final determination, rather it was a recommendation to progress the complaint to a formal disciplinary hearing.
Again, due to the illness of Mr O’Brien and then his retirement, a formal disciplinary proceeding did not eventuate.
His Honour Justice Kelly found that if the disciplinary proceedings had taken place, Mr O’Brien would not have been exposed to dismissal as a sanction had the charges been made out.7 This flowed from the level of seniority of the designated presiding officer and the limits of sanctions which such an officer was authorised to impose.
More specifically, Kelly J found as follows:8
[23]The following matters were apparent from the information before the decision-maker:
(a) In respect of the overpayment, the matter had been investigated by Detective Sergeant Millard and further considered by Superintendent Pointing and Assistant Commissioners Davey and Stewart. Whilst the position was ultimately reached that a disciplinary hearing was warranted, none of the police officers who had investigated or considered the matter, had recommended that the hearing be convened before a prescribed officer with power to impose the sanction of dismissal from the police force. The final recommendation of Assistant Commissioner Stewart had been that the disciplinary hearing be convened before a commissioned officer. A commissioned officer could impose the disciplinary sanctions of a caution or reprimand or a deduction from the officer’s salary or wages of an amount equivalent to a fine of 2 penalty units. A commissioner officer could not, inter alia, impose a sanction imposing a forfeiture or deferment of a salary increment or increase, a reduction in rank or dismissal from the police service.
(b) In respect of the marine incident, the matter had been investigated by Inspector Hortz and further considered by Inspector Baker and Assistant Commissioners Davey and
O’Brien v Commissioner of the Queensland Police Service [2021] QSC 349 at [46].
O’Brien v Commissioner of the Queensland Police Service [2021] QSC 349 at [23].
Stewart. Whilst the position was ultimately reached that a disciplinary hearing was warranted, none of the police officers who had investigated or considered the matter had recommended that the hearing be convened before a prescribed officer with power to impose the sanction of dismissal from the police force. Again, the final recommendation of Assistant Commissioner Stewart had been that the disciplinary hearing be convened before a commissioned officer. Assistant Commissioner Stewart had also recommended that the overpayment and the marine incident might suitably be dealt with at the one disciplinary hearing;
(c) At the time that the applicant had retired from the QPS, the disciplinary hearing had not commenced, and the disciplinary matters remained unresolved;
(d) As the disciplinary hearing had not commenced, there had never been any findings made against the applicant in respect of the proposed disciplinary charges. (Footnotes omitted)
…”
Each of these matters were equally evident on the material before the decision- maker on this fourth occasion.
Process leading to the current decision
As referred to above, the order of Kelly J of 22 October 2021 referred the relevant decision to the Commissioner for further consideration of the decision according to law. This was the fourth occasion for the Commissioner of Police to consider the relevant decision.
The process for the decision began with the delivery of a Preliminary Decision Letter of 8 June 2022. Whilst lengthy, it is appropriate to set out the majority of that preliminary decision. It relevantly provided as follows:9
“I refer to your application to join the Queensland Police Service (QPS) as a police recruit and note this application has a lengthy history, most recently culminating in decision of Justice Kelly in O’Brien v Commissioner of the Queensland Police [2021] QSC 349 in the Supreme Court on 17 December 2021.
…
I have had regard to the decision of the Supreme Court, in addition to the decision of Assistant Commissioner Pond subject of those proceedings. As correctly noted in that judgement, the decision to appoint a person as a police recruit is made pursuant to the
The correspondence from the Queensland Police Service is precisely replicated as it appears, complete with any grammatical and typographical errors.
prescribed responsibilities of the Commissioner of Police under the
Police Service Administration Act 1990 (Qld)(PSAA).
The decision to appoint a person to a police officer position must be undertaken in accordance with the principles of merit enunciated in section 5.2 and Part 5AA of the PSAA. In this regard, section 5AA.11 provides the Commissioner significant latitude to obtain and consider a broad range of information, and permit the Commissioner to have regard to all relevant information available to the Commissioner including information stored on a database kept by the Commissioner or otherwise available to the Commissioner.
In accordance with those provisions, I have had regard to the following documents:
1.Police Recruitment file
2.Ethical Standards records pertaining to your previous employment, including:
a. The reports of the Assistant Commissioner, Ethical Standards Command, dated 12 May 2006 (2005/00977) and 22 May 2006 (2004/00894) recommending you proceed to discipline hearing for both matters, and that the investigations supported those recommendations;
b. The associated internal investigations documents in relation to the two events involving yourself which led to the recommendations for disciplinary charges to be laid against your prior to your medical retirement from QPS;
3.Your submissions dated 18 May 2021 making representations to Assistant Commissioner Pond about the relevant information.
In summary, as noted by the Supreme Court, the first event had involved an overpayment of a substantial amount of monies into your bank account for the pay period 1 November to 14 November 2003 (“the overpayment”). The second matter had involved a marine incident which occurred on 18 April 2004 (“the marine incident”).
I note that all relevant documents referred to above have previously been disclosed to you during the course of the earlier proceedings and have therefore not attached a copy of the same to this correspondence. Despite this, should you require an additional copy of the same, please do not hesitate to advise Mr Craig Capper, Director Legal Service who can furnish you with a further copy of the same.
I acknowledge that no disciplinary hearing was convened, and the disciplinary charges were never resolved prior to your medical retirement from the Queensland Police Service. I concur with the views of Assistant Commissioner Pond, namely that your conduct as identified during the internal investigations remains relevant to my
assessment of your merit as a police recruit, despite the passage of time.
Further, I acknowledge that the discipline proceedings did not proceed, due to your separation from the QPS prior to finalisation of these matters, and further note that the original recommendation was that the matter be deal with by an Assistant Commissioner who could not impose the ultimate sanction of dismissal.
Despite this, I note that the provisions of Part 5AA PSAA are expressed in sufficiently broad terms to provide the Commissioner (or her delegate) with a largely unfettered discretion to consider all relevant material pertaining to the assessment of a person’s suitability to be appointed as a police officer. There is no time limitation expressly or implied into this provision.
Further, regard may be had to any disciplinary records on a database maintained by the Commissioner and any disciplinary records of other agencies disclosed to the Commissioner pursuant to Part 5AA of the PSAA. Nothing in these provisions exclude the Commissioner from considering discipline matters other than those which resulted or could have resulted in dismissal from employment.
I note that the decision to terminate an employee, or the decision to engage an employee, factor many of the same considerations, however the decisions also possess discrete and relevant differences.
In this regard it is noted that:
·An employer has a fiduciary relationship of master servant with an employee which gives rise to obligations to maintain trust and confidence. No such relationship exists between and employer and prospective employee;
·Employer and employee relationship are subject to an underlying and inherent social and psychological contract which consists of beliefs about reciprocal obligations between the two parties. No such contract, implied or otherwise, exists between an employer and a prospective employee;
·In recognition of this fiduciary relationship, the purpose of discipline of an employee is not to be punitive, but rather is intended to be restorative and rehabilitative. A prospective employer is under no obligation to employ a person whom they consider will require rehabilitation or remedial training;
·The termination of an employee, and resultant loss of knowledge skills and experience can have a significant detrimental effect on the business activities of an organisation, and can have significant personal detriment to the employee. Accordingly, termination of the contract of employment relationship is thereby considered a sanction of last resort. No such relationship is relevant to a prospective
employee and therefore this factor is of little to no relevance to the decision to engage an employee;
Accordingly, a decision not to termination an existing employee for a relevant discipline ground does not preclude, or dictate, that the same conduct or grounds cannot found a decision not to re-engage a person as an employee as there is a distinct difference in the parties relationships and relevant considerations. Conduct which may not necessarily have been sufficient to terminate an employee may still be sufficient to ground a decision not to re-employ the person.
In matter 2005/0097, an overpayment to you of $7365.16, the then Assistant Commissioner, Ethical Standards Command, formed the view that you had not exhibited the ethical behaviour expected of an officer of your experience. Disciplinary proceedings against you, for misconduct, were recommended.
In matter 2004/00894, the marine incident involving water police vessel, A P Anderson, the recommended discipline proceedings related to your untruthfulness during your participation in two separate investigations. The investigation revealed compelling evidence of your untruthfulness to superior officers. As a consequence, the investigation of the marine incident recommended disciplinary action against you for:
·countermanding a direction of your then officer-in-charge;
·being untruthful on two occasions; and
·incompetence/negligence in the discharge of your duties.
Having reviewed both of these matters, I have formed a preliminary view that accords with the view formed by the then Assistant Commissioner, Ethical Standards Command in 2006, namely that prima facie the conduct was sufficiently particularised, and sufficient evidence existed, to establish grounds for discipline and that the matters should have proceeded to disciplinary hearings.
Further, based on the information presently available to me, the evidence establishes that;
1.As to matter 2005/0097 (namely the overpayment to you):
oThere was an overpayment made in your favour of $7365.16;
oThese monies were taxpayers’ monies to which you had no entitlement;
oThere was sufficient evidence to establish that you were aware of the of the overpayment by virtue of the amount of monies, and the discussions of the same with colleagues;
oYou failed to take any proactive steps to notify the relevant responsible areas of QPS of the overpayment;
oYou failed to rectify the overpayment or proactively return the monies when you became aware of the same;
oBut for the complaint filed against you, the overpayment would have likely gone undetected due to systems issues, however also due to your failure to report the same;
oWhile you were willing to repay the monies once the overpayment was identified and subject of a complaint, this is not a matter which mitigates your liability for the earlier conduct;
oThe alleged conduct was not only improper, but arguable unethical and dishonest;
oYour alleged conduct was sufficient to render you liable to discipline had you remained employed with QPS.
2.As to matter 2005/0097 (namely the marine incident):
oThe QPS was conducting investigations in relation to various matters;
oYour alleged conduct involved your untruthfulness while participating in two separate investigations;
oThe investigation revealed compelling evidence of your untruthfulness to superior officers;
oFurther, you were alleged to have:
· countermanded a direction of your then officer-in-charge;
· being untruthful on two occasions; and
· acted with incompetence/negligence in the discharge of your duties;
oYour alleged conduct was sufficient to render you liable to discipline had you remained employed with the QPS.
Subject to any submissions you wish to make about my preliminary factual findings above, and generally as to the matters below, I am of the view that:
·The conduct was improper and conduct that was unbecoming of a police officer;
·The conduct falls well below the standards of ethical behaviour, honesty and integrity expected of employees by the QPS;
·The conduct falls well below the standards expected of police officer by the community (whether applied at the time or presently);
·The first incident (as alleged) demonstrates a willingness on your behalf to engage in deceitful, if not dishonest, behaviour contrary to standing directions and policies applying to such circumstances.
·The second incident exacerbates this concern as the matter also allegedly involved a level of dishonestly and acting contrary to directions;
·The maintenance of discipline, command and control within the QPS is premised on all members complying with all lawful and reasonable directions of senior officers;
·The maintenance of public confidence in the QPS and its employees is a significant factors which must be weighed into consideration of your suitability to be engaged as an employee of QPS. Public confidence in the administration of the Queensland Police Service includes members of the public being assured those administering that Service do not allow persons who have engaged in serious misconduct, wilful dishonesty and otherwise unethical behaviour to continue to be employed or engaged by, the Police Service;
·There is a significant incompatibility between your alleged conduct and the maintenance of confidence in the Queensland Police Service.
In coming to my final decision, I will be required to assess the evidence, make final factual findings about the alleged conduct and weigh the findings of the investigations into your alleged behaviour in the two incidents referred to above. Before doing so, I must have regard to any representations you may wish to make.
Accordingly, I am inviting you to make any further submissions you wish to make about your suitability to be employed by the QPS, including but not limited to:
·Whether the findings of fact identified above about the allegations are accepted, or otherwise open to me on the basis of the materials;
·What, if any inferences, are available to me arising from the findings of facts;
·The relevance and weight to be given to any such evidence in assessing your suitability to be employed as a police officers;
·The gravity and seriousness of the conduct, and your views in relation to the relevance of such conduct in assessing your suitability to be employed as a police officer;
·Whether the passage of time, and any personal matters, circumstances or reflections occurring within that passage of time, have affected the gravity and seriousness of the conduct on my assessment of your suitability to be a police officer; and
·Any additional information you may wish to provide about your current circumstances, suitability to be re-employed with the Queensland Police Service as a police officer.
As community expectation underpin public confidence in the police service, namely that all police officers will fulfil their statutory obligations ethically and effectively in accordance with standing directions and policies. Accordingly, I must also weigh any factual matters against the community’s expectations that police recruits will be individuals who demonstrate the highest standards of integrity. Consequently, I would also welcome submissions about community expectations of police officers and how you meet those expectations.
I am prepared to allow you a period of 28 days from the date of this correspondence to make representations about this information, if you choose to do so.
Upon the earlier of the expiration of the 28 days, or upon receipt of any representations from you, I will make a final decision as to your suitability to be engaged by the QPS.”
By an email dated 21 August 2022, Mr O’Brien complained about the decision- maker not having made a decision in relation to the application. Mr O’Brien foreshadowed the making of a complaint in relation to the tardiness of the decision- maker. As part of the email, the following statements were made:
“…QPS reasons for refusing my application on integrity grounds have been extensively tested. I have always maintained that the complainant of ‘disobey direction’ made by Inspector Day (ESC) in 2004 was fabricated, first investigation dismissed due to lack of evidence, second investigation was never finalised (after 4 years). I have been denied complete access to view or test any evidence in almost 20 years. The court held that this was a denial of Natural Justice and ordered a new decision.…”10
The email also attached a written document from Mr O’Brien which, in part, made criticisms about the Preliminary Decision Letter of 8 June 2022. It provided as follows:
“I refer to your letter dated 8 June 2022 in relation to my 2016 Queensland Police Service recruit application. This matter has been the subject of three Judicial Reviews. I was provided 28 days to respond to this letter. I was advised that further information would be provided. No other information was provided to me. Below is a summary of action taken in an attempt to resolve this application.
Application Process
14 October 2016 Queensland Police recruit application lodged 25 May 2017 Applicant finalised all aspects of the recruitment process 24 January 2020 Applicant made a complaint to Queensland Ombudsman in
10The document from Mr O’Brien is precisely replicated as it appears, complete with any grammatical and typographical errors.
relation to Respondent failure to make a decision 1 March 2020 Decision made by Inspector Cannes. Applicant was deemed not suitable due to reasons of integrity. 21 October 2020 Judicial Review 1 (6094/20) - Respondent conceded error of law. Consent order - Set aside decision, make a new decision. 20 November 2020 Decision made by Assistant Commissioner T.J. Lawrence. Applicant deemed not suitable due to reasons of integrity. 30 April 2021 Judicial Review 2 (13213/20) - Respondent conceded error of law. Consent order - Set aside decision, make a new decision. 3 June 2021 Decision made by Assistant Commissioner Pond. Applicant deemed not suitable due to reasons of integrity. 14 June 2021 Judicial Review 3 (6737/21) lodged. 18 December 2021 Judicial Review 3 - decided in my favour
Judicial Review 1 - 6094/20
1.The Respondents concession:
a. The Respondent concedes an error of law in the decision- making process
b. New discipline system, subsequent amendments to Police Service Administration Act 1990 (PSAA), set time limits for discipline matters.
c. Applicant disciplinary matters all of the relevant dates have passed.
d. The Respondent concedes that the delegate failed to comply with the PSAA.
Judicial Review 2 - 13213/20
2.The Respondents concession:
a. The Respondence concedes an error of law in the decision-making process
b. Decision failed to comply with PSAA s 5AA. 12.
c. Applicant was not provided with an opportunity to respond.
d. The Respondent concedes that the Delegate failed to comply with the PSAA.
Judicial Review 3 - (6737/21)
3.Justice Kelly decided in O’Brien v Commissioner of the Queensland Police
a. The assessment of the two finalised, 2003 & 2004 application had denied natural justice.
b. The decision maker failed to consider to provide scientific reasons why the applicant was unsuitable.
With respect, the letter identified the same issues which have already been dealt with. The decision maker has again failed to provide information relied upon. The decision maker has failed to identify what are the specific concern of the decision maker.
As per the last three decisions, I acknowledge that two complaints were made in 2004 & 2005 by Inspector Barry Day (Ethical Standard Command). Both complaints related to alleged conversations from around 2003 (no date provided) with no witnesses, records or any notes. As previously stated, I have never viewed the allegations or witness statements and maintain the complaints were fabricated as retribution by Inspector Day.
I have never been provided any evidential material. I maintain that if I was given the opportunity, I would have contested both matters. I dispute the facts of both matters.
I believe process followed by Assistant Commissioner Scanlon have already been dealt with in the previous Judicial Reviews, specifically;
1.Failed to comply with PSAA s 5AA.12. Information relied upon was not provided
2.Failed to provide specific reasons why unsuitable (O’Brien v Commissioner of Police)
As the reasons identified in the letter are identical to that which have been deal with in the previous three judicial review. It again, fails to comply with provisions of Police Service Administration Act 1990. (PSAA)
The preliminary decision has failed to consider PSAA Section 5AA.12
5AA.12 Particular persons to be advised if person is unsuitable
(1)If, because of information relied on by the commissioner under this part, the commissioner considers a person, other than a PSBA employee or an external service provider, may not be suitable to be, or continue to be, engaged by the service, the commissioner must, before deciding the person is not suitable--
(a) Disclose the information to the person; and
(b) Allow the person a reasonable opportunity to make representations to the commissioner about the information
(2)The commissioner must give reasons why the commissioner considers the person may not be suitable to be, or continue to be, engaged by the service unless the commissioner considers the disclosure of the information may--
(Intentionally highlighted)
As per the previous decisions, I have not been provided information considered by the decision maker.
A/C Scanlon letter states; (page 1 & 2)
I have had regard to the following documents;
1.Police recruitment file
2.Ethical Standard reports
a. Reports of ESC
b. Associated internal investigations
3.Your submission dated 18 May 2021.
NO documents were provided. Two emails were sent to Mr Capper requested the document.
A/C Scanlon letter states; (page 5)
“I’m inviting you to make any further submission you wish to make about your suitability to be employed by the QPS.”
I have not been given reasons why not suitable. The letter describes factually findings. This was address by Justice Kelly. I’m unsure what makes my
application unsuitable, there were no factual findings. The proposed ‘factual finding’ assessment by Assistant Commissioner Scanlon will fail to provide ‘Natural Justice’ and is a kin to a ‘kangaroo court’.
As this preliminary decision from Assistant Commissioner Scanlan is identical to that made by Assistant Commissioner Pond (Judicial review 3), my
response is already contained in the documents reviewed which has been identified in the letter as;
“3. Your submission dated 18 May 2021 making representations to Assistant Commissioner Pond about the relevant information”
Please contact me if you require any further information.”
On 16 August 2022, an application brought by Mr O’Brien was made to the Supreme Court to press the decision-maker for a final decision.
On 1 September 2022, his Honour Justice Boddice made directions for:
(a)the decision-maker to provide Mr O’Brien with any additional materials relied upon for the purposes of making the decision, by 8 September 2022;
(b)Mr O’Brien to provide the decision-maker with any additional submissions proposed to be relied upon in support of the application by no later than 22 September 2022; and
(c)the decision-maker to advise Mr O’Brien of the decision by no later than 7 October 2022.
By 7 September 2022, the legal representatives for the QPS provided documents relied upon by the decision-maker for the purpose of making the decision. The QPS submitted that most, if not all, of these documents had previously been available to Mr O’Brien by various means in the past. That submission is substantiated on the evidence.
At the hearing of this application, Mr O’Brien confirmed that he took no issue with the timing of the provision of these documents. There is no contention before the Court to the effect that there was insufficient time to review the documents and respond to them.
Mr O’Brien then provided his further submissions, consistent with the consent order of Boddice J. This was done by a letter dated 13 September 2022. The letter provided as follows:11
“Response is referenced to:
Justice Kelly Orders issued on 14 December 2021
2.Preliminary decision of Assistant Commissioner Scanlon dated 8 June 2022
3.Response letter by Brett O’Brien dated 9 June 2022
4.Consent orders issued dated 1 September 2022
5.Documents provided by Mr Capper, QPS Legal dated 7 September 2022
Dear Assistant Commissioner Scanlon,
This document from Mr O’Brien is precisely replicated as it appears, complete with any grammatical and typographical errors.
This matter relates to my 2016 QPS Recruit Application and specifically the QPS assessment that my application failed due to an integrity assessment.
It is clear that these matters have been already extensively reviewed. QPS engaged an independent review and the matter has been subject to three Judicial Reviews. All reviews have found in my favour.
Despite, Justice Kelly’s ruling that the process was a denial of ‘Natural Justice’. It is clear that you have chose to use the exact methodology and supporting documents that were found wanting by Justice Kelly.
I note in page three of your letter, that you provide information about how the relationship between perspective employee differs from that of an employee. This is perhaps a correct legal principle in many areas of employment law.
However, in relation to the engagement of employment as ‘Recruit’ in the QPS, the Queensland Police Administration Act (1990), Section 5.5(2) has no such differential. Police recruit is employed under the same conditions as any other officer with in the service. There is a clear intention to NOT have separate level of relationship.
5.2 Appointment to be on merit on impartial procedures
(2) A decision to appoint a person as a police recruit or to a police officer position must be made by fair and equitable procedures that--
(a) include inviting applications and selection on the basis of the merit of applicants; and
(b) prevent unjust discrimination, whether in favour of or against a person
The letter has identified two disciplinary complaints both initiated from two alleged conversations between myself and then Senior Sergeant Barry Day (currently Inspector ESC) in about 2003. I have never been provided a copy of the complaint or statements from Senior Sergeant Day in relation to either matter.
I believe that the three has made an error in assessment of the matters. This type of assessment has already been examined in O’Brien v Commissioner of Police by Justice Kelly and found that it was a denial of natural justice.
It appears that there is a fixed mindset in how these matters are to be assessed. Despite the fact that I have no opportunity to view or test any of the assumptions made that an assumption of guilt is being made. This is essentially a ‘Kangaroo Court’ with no real attempt to discover the truth and just continue to the lack of due process.
I will address the points in which have been identified by Assistant Commissioner Scanlon on page 4. These points are appeared to be a
judgement of guilt when there has been no testing of evidence for matters in which I have not even been provided the information.
Majority of the information provided to me was in relation to another officer, Senior Sergeant Foessel, which was an marine incident investigated by Senior Sergeant Crank in 2004. All matter against me in relation to this investigation were withdrawn as there was ‘insufficient evidence’.
In fact, despite the matter being over 200 pages, only one question related to the alleged direction. I was asked by Senior Sergeant Crank, was I given a direction for Foessel not to drive the vessel solo. My answer was ‘No’. That was the entirety of the evidence contained in the over 200 pages provided. I’m unsure how it is possible to determine guilt from that single response to a single question. This is the reason the matter was dismissed against me in 2004 and yet has now been used to determine guilt appear to be unjust, considering I have no real avenue to question this NEW assessment.
Page 4 of Assistant Commissioners Scanlon’s letter contain the bellow points. I have provided my view on each point. I again argue this was the process adopted in the previous three Judicial Reviews which were all found to be lacking due process and a denial of ‘Natural Justice’
Complaint 1 - Overpayment. Points identified on Page 4 of the letter. My replies to these points are the best of my recollection, these matters occurred 20 years ago.
(italics was points from the letter, standard text is my response.) As to the matter 2005/0097 (namely the overpayment to you):
a. There was an overpayment made in your favour of $7,364.16
-INCORRECT - overpayment was less than $4,000 after tax, which is what I received
b. These were tax payers monies which you had no entitlement;
-I paid back the full amount of $7,364.16. I did not receive tax back so effectively I paid a $3,500 extra to the QPS. I made payment arrangement as soon as overpayment was confirmed. Overpayments were so common; they were identified by the QPS Union and process included in the EBA. I spoke to Peter Stokes, HR Manager at the time and he stated that he was unaware of any other officer who had been investigated for an overpayment when it was an error made by an administration officer.
-The administration officer was not investigated or disciplined for making the error, this was confirmed by Peter Stokes at the tie.
-Unknown how the error occurred or why it was not identified.
-All other previous overpayment were advised within a few months.
-There was no on-line payment system 20 years ago. Advise was provided via internal mail.
c. There was sufficient evidence to establish that you were aware of the overpayment by virtue of the amount of monies, and the discussion of the same with colleagues.
-I was aware, I contact HR and advised and advised Senior Sergeant Day. My only requirement under the HR Manual is to advise the Officer in Charge. Considering Senior Sergeant Day made the complaint is proof that he was advised.
-I also told every person working that day as I was annoyed as it happened so often.
-The payslips were so confusing was difficult to understand. I showed ever officer on that day to try and find if there was an error. No error could be established but it seemed high so I kept the payslip in a file in case it was in fact an overpayment.
-I had always been advised of overpayments in the past, why I wasn’t advised of this case is unknown. Why, Senior Sergeant Day did not follow up with Payroll as required was not investigated. This is a requirement under HR Manual.
-As the time I had a line of credit home loan of around
$400,000 jointly with my partner. Less than $4,000 was not a lot considering two wages and all bills come out of that account. As time went along, I forgot about the overpayment, as I was never advised it was an overpayment why would I do more then what was required by the HR manual. I had relieving over that period, overtime, my partner had suffered late term mischarges over that period which required careers leave. It was a complex pay period.
d. You failed to take any proactive steps to notify the relevant responsible areas of QPS of the overpayment
-INCORRECT - HR Manual provides that my responsibility was to advise my Officer in Charge, which was done (identified in Superintendent Pointing report). I also advised HR and told every officer that was working. HR did not advise it was an overpayment. It was also Officer in Charge responsibility to follow up; this was not investigated.
e. You failed to rectify overpayment or proactively return the monies when you became aware of same
-INCORRECT - Every report and investigation matter advise that I arranged to replay the money immediately after being made aware.
-Reports contain an email between myself and Peter Stokes, QPS HR confirming this fact. My only delay is that I disputed that I should not pay back the tax amount of around
$3,500 as I did not receive it. I was advised to pay the full amount, which I did. I regret paying the extra $3,500 to the QPS but just did what I was asked.
f. But for the complaint filed against you, the overpayment would likely have gone undetected due to systems issues, however also due to the failure to report the same:
-INCORRECT - matter was reported to HR and OIC.
-I believed I was overpaid and advised all the staff of the same. Contacted HR and not being advised that I was overpaid, it is reasonable to assume that it must be correct. Please look at the payslip, it’s not easy to understand.
-Why was the complaint made in 2005 and overpayment in 2003?
-I do not know who made the complaint
-I have never been provided a statement from the person who made the complaint.
-At no time did I hide the overpayment and it was the only payslip that I kept. I’m unsure what more am I meant to do. I advise the appropriate person, required in HR Manual. I receive no response so believe it must be correct but kept the payslip in case. I paid the money back in full as soon as I was advised. It wasn’t a computerised system like today, it was 20 years ago. I could not go back and compare. You received your payslip in the internal mail. I was not going anywhere, I didn’t take the $4,000 out of the bank and leave the country. I just continued to work and be paid. The error and failing to identify the overpayment was an error of others.
g. While you were willing to repay the monies once the overpayment was identified and subject of a complaint, that is not a matter which mitigates your liability for earlier conduct.
-INCORRECT - I advised HR and OIC. Every other overpayment in the previous 12 years. I was advised in a month or two. I was advised of the overpayment after I was interviewed about the complaint. What else could I have done. I didn’t even know how much the overpayment was until a month after the interview for the complaint. I complied with the HR Manual and paid back more then required. What am I liable for? I currently work for
Corrective Service, overpayments are common. No one is investigated, HR advise and you pay back or do extra hours. It is common in Qld Health and agencies with shift workers. This was a failure of HR systems. I complied with the HR Manual and did not hide the fact that I believed I was over payed. HR failed to follow up, audit failed to pick it up. How was I to know it was an overpayment.
h. The alleged conduct was not only improper, but arguable unethical and dishonest;
-INCORRECT - the matter was assessed by Assistant Commissioner DAVEY, South Eastern Region (2006) as at most, a breach of discipline.
-This was an assessment on the evidence and prior my response.
i. Your alleged conduct was sufficient to render you liable to discipline had you remained employed with the QPS.
-INCORRECT - matter was not finalised intentionally by QPS.
-Final recommendations were made 18 months prior to my separation.
-The decision to delay resolution of the matter to proceed was made by QPS. I have never been provided a reason why the matters were delayed. I’m sure there are emails and file notes explaining the reasons, I have been denied access to this information.
-I have been attempting to finalise the matter and test the evidence for the entire time. QPS made the decision to keep the matter open for 4 years investigation and not finalise.
Complaint 2 - Marine Incident matter 2005/0097 (incorrect number in the letter)
Essentially this matter involves as conversation between myself and Senior Sergeant Barry Day sometime in 2003. I was a Sergeant at the Gold Coast Water Police and Senior Sergeant Day was the OIC. I had been relieving as the OIC Gold Coast Water Police for most of 2003. Senior Sergeant Day was appointed to the position sometime late that year.
The allegation is that Senior Sergeant Day directed me to no allow Senior Constable Foessel to operate vessel AP Anderson solo. Some, nine months later, I allowed Senior Constable Foessel has a minor marine incident ($1,600 damage) in this vessel. The incident was caused as Senior Constable Foessel failed to wear the ‘cut off’ lanyard. If he had so the incident would not have occurred. A few days after the incident occurred, it appears that Senior Sergeant Day
recalled this alleged direction from around nine months previous and made a complaint.
Myself and Senior Constable Foessel always denied there was a direction. Late in 2003, Senior Sergeant Day had allowed Foessel to operate the same vessel solo, some four months before the incident. I remember this specifically, as I had been rostered with him in the same vessel (AP Anderson). My partner had spotting in the morning but I went to work anyway as Indy was on and didn’t want to let anyone down. However, early in my shift my partner went to hospital and had a mischarge, she had been 12 weeks. I advised Senior Sergeant Day and he advised that Senior Constable Foessel could operate the vessel solo until other staff arrived. Senior Constable Foessel had never had a marine incident previously or after the event. Other officers had marine incident through-out my seven years at the Water Police.
Senior Constable Foessel was authorised by law and procedures to operate the vessel solo. I was the training officer a Gold Coast Water Police and had worked 80% of my shifts with Senior Constable Foessel for the four months prior (this was confirmed in statement provided by Sergeant Kelly who was the rostering officer, information provided).
There was no evidence of a direction in an email, training plan or reflected in Senior Constable Foessel performance review which were conducted by Senior Sergeant Day. Senior Constable Foessel at the time was the third most senior officer at the Gold Coast Water Police in Police service years. He was a distinguished traffic officer.
Senior Constable Foessel has since been promoted to Sergeant and Officer in Charge of Elanora, Police beat. This complaint did not prevent his promotion and yet has prevent my re-entry to the QPS for the past 10 years and I was at home as the time of the marine incident and yet my sanction is life long.
Why am I being treated differently to Sergeant Kurt Foessel. He pleaded guilty does not effect his promotion or employment. I maintain that I’m innocent and receive a life ban and my integrity assessment is an effective ban from all other Police agencies.
Matter was investigated twice. First investigation - Senior Sergeant Crank. I was charged with misconduct but all charges were dismissed due to lack of evidence. The matter was then re- investigated by Inspector Hortz. I have never been provided a copy of this investigation. I have never been charged with any matters despite this investigation being finalised 18 months prior to my separation from the QPS.
Matter identified by Assistant Commissioner Scanlon letter page 4.
a. The investigation revealed compelling evidence of your untruthfulness to superior officers
- INCORRECT - I denied that I was given a direction. ESC policies state that you can be charged with untruthfulness for defending yourself against an allegation. I wasn’t able to test the allegations and was denied natural justice.
b. Your alleged conduct was sufficient to render you liable to discipline had you remained employed with QPS.
- INCORRECT - I was never charged with any offences. To make the assessment that the matter would have been proven is a ‘denial of natural justice.’
- The first investigation was dismissed due to lack of evidence.
- The second investigation was likely the same.
- There was no proof of any direction. Senior Sergeant Day provided three different statements on the matter. First, claimed a witness, Senior Sergeant Flori who provided a statement that he was not present. Second, claimed a secret tape recording, however could only provide his transcript of conversation and no tape recording.
- I have always maintained that Senior Sergeant Day fabricated that the direction occurred. There is not even a date nominated for alleged direction. Senior Sergeant Day’s (Inspector ESC) change of versions was never subject to investigations. The fact he claimed a witness who denied being there was never investigated.
QPS seem to have a fixed mindset in relation to my recruit application. I have attempted to have these matter resolved for over 15 years and all requests have been denied. QPS have made no attempt to find a solution to the matter and instead have kept matters open and greatly exaggerated the importance of each incident as a way to prevent my re-entry. I’m unsure why this is the case.
I was a dedicated officer who risked my life on a number of occasions to save lives and serve the Queensland public. I can provide numerous senior QPS members who will support my application. I went on to devote 10 years to the Not-for-profit sector and responsible for the arrang funding and construction of the RSPCA Headquarters, Wacol; Mental Illness Fellowship Headquarters, Herston and disability housing projects in Norther NSW. I currently work as a Corrections Officer. My integrity has never been questioned.
Can you please see it from my view. I was a Police Officer for 15 years, I have no discipline history (no finalised matters), two matters against me, I believe were fabricated. Is there anything worse than knowing you are innocent of something and not been given any avenue to test the evidence or right of appeal.
The matters relate to conversation which alleged to occur over 20 years ago and were considered minor at the time. It is only since leaving the QPS that they have escalated.
QPS integrity assessment has meant that I can not gain entry to any other Police Service. This has prevented my employment opportunities for the past 15 years. There are for things that I have always wished to contest but been denied an opportunity for reasons that are unclear. The failure to finalise the matters were a decision of the QPS. The fact that I was advised that the matter would be ongoing for years was the sole reason I separated. I felt I was forced out and these matters were used as a bullying tactic. For this to continue for 20 years, under any measure is unfair and unjust.
Assistant Commissioner Scanlon has followed the identical procedure to that of Assistant Commissioner Pond. I have included Judicial Review 3, outline of argument as a response to why this process does not comply with the Queensland Police Administration Act (1990)
If you require any further advise please contact me.
As per - Consent Orders issued on 1 September 2022. Assistant Commissioner Scanlon response is required by 28 September 2022.”
On 27 September 2022, the decision-maker delivered her decision in writing. That decision relevantly provided as follows:12
“I refer to your application to join the Queensland Police Service (QPS) as a police recruit and refer to my preliminary decision and findings of 11 May 2022. In this regard, I note that my preliminary findings and concerns were identified in the earlier preliminary decision in accordance with the decision of Justice Kelly in O’Brien v Commissioner of the Queensland Police [2021] QSC 349.
I am the Assistant Commissioner Ethical Standards Command and have been requested by the Commissioner of Police to assume responsibility as the delegate decision maker to give further consideration to your recruit application and to independently determine the application according to law.
I have determined that your application to be re-employed by the Queensland Police Service is to be refused for the reasons set out in my preliminary decision and as further set out below.
I have had regard to the following documents in making my preliminary determination:
1.Police Recruitment file;
2.Ethical Standards records pertaining to your previous employment, including:
a. The reports of the Assistant Commissioner, Ethical Standards Command, dated 12 May 2006 (2005/00977) and 22 May 2006 (2004/00894) recommending you
This correspondence from the Queensland Police Service is precisely replicated as it appears, including any grammatical and typographical errors.
proceed to discipline hearing for both matters, and that the investigations supported those recommendations;
b. The associated internal investigations documents in relation to the two events involving yourself which led to the recommendations for disciplinary charges to be laid against your prior to your medical retirement from QPS;
c. Your submissions provided to Assistant Commissioner Pond on 18 May 2021;
3.The decision of Justice Kelly in O’Brien v Commissioner of the Queensland Police [2021] QSC 349;
4.The decision of Assistant Commissioner Pond subject of those proceedings.
I note that each of these documents have been provided to, or by, you.
I have further had regard to the following additional documents provided by you following my preliminary decision, namely:
5.O’Brien Judicial Review – Outline of Argument 3
6.Show Cause Response – undated – received 4 July 2022;
7.Show Cause Response 2 – O’Brien (sic) – dated 13 September 2022.
I have reviewed and carefully considered each of these documents, whether referenced specifically herein or otherwise.
Legislative framework
The decision to appoint a person as a police recruit is made pursuant to the prescribed responsibilities of the Commissioner of Police under the Public Service Administration Act 1990 (Qld)(PSAA). The decision to appoint a person to a police officer position must be undertaken in accordance with the principles of merit enunciated in section 5.2 and Part 5A of the PSAA.
The information obtained by the Commissioner may be taken in account in determining a prospective appointee’s merit, as defined in section 5.2 PSAA. The provision of section 5.2(5) of the PSAA relevantly define merit for the purposes of such assessments and include:
(a) the integrity, diligence and good conduct of the officer; and
(b) the potential of the officer to discharge the duties of the position in question; and
(c) the industry shown by the officer in performance of the duties of office in the course of the officer’s career; and
(d) the physical and mental fitness of the officer to perform the duties of the position in question.
I note that these considerations equally apply to the assessment of a former police officers seeking to be re-employed by the Queensland Police Service.
In deciding whether to engage a person as a police recruit or to a police officer position, the Commissioner has significant latitude to obtain and all relevant information available to the Commissioner including information stored on a database kept by the Commissioner or otherwise available to the Commissioner.13
The relevant complaint investigation files have been provided to you in full for your consideration and I am satisfied that you have been provide a reasonable opportunity to make representations about the materials.14
In this regard, I note that at the time of the cessation of your previous employment, you were subject to two internal disciplinary investigations/processes, one of which had initially been recommended proceed to a disciplinary hearing at the level of Assistant Commissioner.
It is noted that which each of these matters was initially proposed to be dealt with by an Assistant Commissioner, a subsequent review conducted by the ten Assistant Commissioner, Ethical Standards Command recommended that the matter be dealt with in conjunction with the other then outstanding discipline matter at Commissioned Officer level.
Ultimately, neither matter proceeded to a final disciplinary hearing and outcome due to your absence from the workplace for health reasons and as you ultimately resigned from the QPS prior to discipline proceedings being finalised.
Relevant complaints
The first of these matters related to a complaint that you had disobeyed a direction (2004/00894) whereby you purported to countermand a direction issued by a superior officer and permitted a subordinate (Foessel) to operate a police vessel without supervision which resulted in an accident and significant damage to a police vessel. Further, that you engaged in dishonesty by lying to the internal investigator tasked with conducting the investigation into the alleged misconduct.
While the investigation records and reports provided to you also relate to the conduct of Foessel and the outcome of that investigation, I note that the conduct of Foessel and yourself are intrinsically intertwined and the conduct of Foessel provides a necessary conduct which must be considered in assessing the complaint made against you.
Section 5AA.11 PSAA
Section 5AA.12 PSAA
The second complaint relates to a significant overpayment made to you by way of payroll (2005/0097) and alleged dishonesty by failing to take remedial steps to address the overpayment without the intervention of the Queensland Police Service.
Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225 at paragraph [62] per Payne JA, with whom Ward ACJ and Basten AJA agreed.
submissions of Mr O’Brien provide what is said to be an illustration of this. It refers, as an example only, to the statement in the final decision that, “all officers interviewed as part of the investigation provided evidence which support that such a direction was given by Senior Sergeant Day, and was well known amongst all Gold Coast Water Police personnel.” This quote was made in respect of the Marine Incident.
Mr O’Brien contended that this quoted statement would have indicated that there must have been overwhelming evidence to support that fact. He further submitted that if that were the case, he would have expected that the respondent would have identified what information was relied upon.
Mr O’Brien submitted that he was not attempting to engage in a merits review.
Mr O’Brien submitted that not a single officer had stated that he was aware of the alleged direction and that the majority of officers were unaware that any direction by SS Day had ever been made. Importantly, Mr O’Brien said that SC Foessel, who had been the master of the vessel at the time of the Marine Incident (and the person the subject of the alleged direction), had denied knowledge of the direction in numerous interviews.
The submission was that the matters raised indicated the significant shortcomings of the procedures adopted and exemplified that there had been a failure to conduct a fair hearing, whereby Mr O’Brien had a right to be heard as a tenent of procedural fairness.
All of this, it was submitted, had denied Mr O’Brien a reasonable opportunity to make a representation to the decision-maker.
Determination of the second contention
For the reasons identified under the natural justice issue, my assessment of the circumstances of this case (bearing in mind the nature of the decision and the relevant provisions of the PSA Act), is that natural justice did not dictate that Mr O’Brien needed an oral hearing and a right to cross-examination.
Further, I am satisfied that the Preliminary Decision Letter of 8 June 2022 sufficiently particularised the conduct complained of.
Turning then to the specific example provided by Mr O’Brien, I conclude that it does not illustrate that he was not given an appropriate opportunity to respond as provided for in the statute.
The Preliminary Decision Letter of 8 June 2022 had identified the preliminary findings that the Marine Incident involved the countermanding of a direction of the then Officer-In-Charge, and the untruthfulness of Mr O’Brien on two subsequent occasions in the interview process.
There can be no confusion that the direction being referred to in the investigation was the direction said to have been given by SS Day to SC Foessel not to operate the relevant vessel in a solo capacity. Equally, there can be no confusion that the relevant untruthfulness being referred to was Mr O’Brien having denied knowledge
of the direction on two occasions when interviewed about the Marine Incident.
Those denials appear in the transcripts of Mr O’Brien’s two interviews.34
For the purpose of the example Mr O’Brien has given, the type of analysis of the information underlying the Preliminary Decision Letter of 8 June 2022, as contained particularly at page 22 in the primary written submissions of Mr O’Brien, is an analysis he could have conducted in response to the relevant preliminary decision letter.
Thirdly, the analysis which Mr O’Brien performed at page 22 of his primary written submissions is, in effect, a merits attack on the final decision.
Fourthly, it should not be assumed that the analysis of Mr O’Brien is objectively correct in any event. As this is not a merits review, I do not intend to comment on every aspect of the analysis. However, I will give my own example of how it is objectively incorrect.
One of the most important statements made by Mr O’Brien35 was that SC Foessel had denied knowledge of the direction in numerous interviews. This contention by Mr O’Brien was important as his case, in part, was that no such direction had ever existed.
The relevant statement on this issue is objectively incorrect. SC Foessel, in two separate transcribed interviews, expressly accepted that the direction not to operate the vessel solo had been given to him in 2003.36
Mr O’Brien said that not a single officer stated that Mr O’Brien was previously aware of the alleged direction. However, on the material, there was significant evidence which supported a potential finding that Mr O’Brien had been aware of the direction. In his interview, SS Day had stated that he had informed all of the supervisors of the relevant direction.37 Mr O’Brien at all relevant times was the second-in-charge to SS Day and was one of the supervisors of SC Foessel.
Further, SS Day had identified that at some point after the direction had been given, Mr O’Brien had subsequently approached him, on behalf of SC Foessel, about lifting the restriction on SC Foessel not being able to operate the AP Anderson solo. In a transcribed interview, SS Day stated that he clearly refused this and told Mr O’Brien to communicate that decision to SC Foessel.38
Quite separately to the statements made by SS Day, SC Foessel in one of his interviews, corroborated that this had occurred. SC Foessel identified that he had spoken to Mr O’Brien and had asked Mr O’Brien to go to SS Day to get permission for him to operate the relevant vessel solo. He stated that Mr O’Brien had then come back and given the response to SC Foessel that he still had to work on his
CC-10 page 9, Transcript of Interview on 28 April 2004 and CC-13 page 32, Transcript of Interview on 10 March 2006.
At page 22 of his primary submissions.
CC-10 page 32, Transcript of Interview of 25 August 2004; CC-13 at page 4, Transcript of Interview of 6 March 2006.
CC-10 page 48, Transcript of Interview of 30 April 2004.
CC-10 page 48, Transcript of Interview of 30 April 2004.
skills. In effect, the response was that the request made of SS Day through Mr O’Brien had been refused.39
Other senior officers had direct knowledge of the direction. Senior Constable Brown stated in his interview that he knew of the direction personally and had been told of it by SS Day.40 Senior Constable Brown further stated that as far as he was concerned it was general knowledge in the office. Sergeant Leonie Scott made a statement that she was personally aware of the direction for SC Foessel not to operate the vessel solo. She identified that this direction was very common knowledge and she had been aware of it for months before the Marine Incident.41 She expressed the view that everybody would have known of the direction; it was something openly discussed and even joked about because of previous incidents involving SC Foessel in other vessels.
Sergeant Mark Kelly stated that he knew about the direction in his interview. He identified an occasion in about October 2003 when SC Foessel approached him and spoke to him about not being able to drive the vessel by himself. At that time, Sergeant Kelly recalled SC Foessel telling him that Mr O’Brien had said that he could not see why SC Foessel could not drive the boat by himself. Sergeant Kelly stated that as a result of this conversation, he went to SS Day and told him about what Mr O’Brien had been going around and saying, namely, that SC Foessel could drive the vessel himself. He stated that SS Day had said to him that SC Foessel was not to drive the boat by himself. Sergeant Kelly stated that he went back to SC Foessel and told him that, under no circumstances, was SS Day going to let him drive the boat.42
There was material before the decision-maker which could have supported a finding that the direction had been given and that Mr O’Brien had known about the direction.
There was further material before the decision-maker that SC Foessel was not the only officer the subject of restriction. Constable Banyeri, in a transcribed interview statement, said that he also had been told that he could not operate the AP Anderson solo because he did not have a restricted Coxswain’s certificate. He had previously had the relevant certificate, but it had expired, and SS Day had revoked his sole usage of the relevant vessel. Constable Banyeri was informed of this restriction both orally and in writing, and Sergeant Kelly had separately spoken to him about the matter.43
Constable Banyeri also recalled being personally aware of the inability of SC Foessel to take the vessel, because he did not have a restricted Coxswain’s certificate. His recollection was that SS Day had told him that he had spoken to everyone in the office who was authorised to use it. On that basis, he had an understanding that Mr O’Brien was aware of the direction.44
CC-13 page 8, Witness Transcript of 6 March 2006.
CC-11 pages 22-23, Transcript of Interview of 31 January 2006.
CC-11 page 32, Transcript of Interview of 31 January 2006.
CC-12 pages 72-74, Transcript of Interview of 21 January 2006.
CC-12 page 84-85, Transcript of Interview of 25 January 2006.
CC-12 page 97, Transcript of Interview of 27 January 2006.
As part of the example, Mr O’Brien refers, in his primary submissions, to a Senior Constable Bullers, and says that Senior Constable Bullers provided evidence that it was commonplace for an officer to operate the vessel solo, and Senior Constable Bullers was not questioned about the direction. The transcribed interview with Senior Constable Bullers recorded that he had only worked in the Gold Coast Water Police for a period of three months in 2001. This was two years prior to the direction being given to SC Foessel and the relevant marine incident happening.45
I do not propose to go through the rest of the submissions made by Mr O’Brien at page 22 of his primary submissions. It suffices to say that what is set out above illustrates that, in a number of respects, what Mr O’Brien submitted was either objectively incorrect or was contestable on the material.
The example given by Mr O’Brien does not support that Mr O’Brien was not afforded the statutory opportunity to respond to either the Preliminary Decision Letter of 8 June 2022 or the information which accompanied it.
Ground 3: No evidence or other material to justify the making of the decision (s 20(2)(h) of the JR Act)
Introduction
Ground 3 of the application is that there was no evidence or other material to justify the making of the decision in accordance with s 20(2)(h) of the JR Act.
Mr O’Brien’s position on this ground was unclear.
Mr O’Brien, on page one of his primary submissions, listed it as one of the three grounds of review. However, those same written submissions then advanced no positive submissions in support of the ground.
In his reply submissions, Mr O’Brien purported to add a Ground 4, which was described as “unreasonableness”. That fourth ground was introduced in response to a submission by the respondent to the effect that the decision was reasonable and there was sufficient evidence capable of satisfying the decision-maker that Mr O’Brien was not suitable as a recruit. In his reply submissions, Mr O’Brien submitted that there was no evidence to substantiate either matter. Mr O’Brien then went on, in the reply submissions at paragraphs [44]-[45] (in relation to the Marine Incident) and paragraphs [46]-[47] (in respect of the Overpayment Incident), to refer to various material which he said was before the decision-maker. Amongst other things, Mr O’Brien then submitted that there was no evidence which justified the findings of the decision-maker. He submitted that the basic elements of an offence had failed to be established.
When making his oral submissions, Mr O’Brien did not appear to initially make any submissions in relation to the no evidence ground. This apparent position was specifically raised with Mr O’Brien.46 Mr O’Brien responded:
“I haven’t addressed it, your Honour. It was just - it was more so redressing the submission of the respondent by saying that there was
Exhibit CC-13 page 67, Transcript of Interview of 6 April 2006.
T1-41 l 40 to 1-42 l 25.
sufficient evidence. And I was just identifying that there isn’t sufficient evidence. There is - there’s virtually - there’s no evidence that - every submission, every letter, every show cause has never directed to one piece of evidence. It’s directed to opinions of others, it’s directed to reports of others, but not actual facts of evidence. And that was just highlighting the fact that there’s no evidence. Like, but it’s a very difficult ground to prove, so I - I understand if that doesn’t - - -”
Despite the ground not having been advanced in the primary submissions, Mr O’Brien had made some submissions in his reply and orally which may be attributable to this ground. Further, Mr O’Brien had not formally abandoned this ground. It is appropriate to consider the ‘No Evidence’ ground as being a live issue in the proceeding.
Statutory sections and applicable legal principles
The ground relied upon is founded on s 20(2)(h) of the JR Act, which is in the following terms:
20 Application for review of decision
…
(2) The application may be made on any 1 or more of the following grounds—
…
(h) that there was no evidence or other material to justify the making of the decision;
...
That ground is then also dealt with by s 24 of the JR Act which provides as follows:
24 Decisions without justification—establishing ground (ss 20(2)(h) and 21(2)(h))
The ground mentioned in sections 20(2)(h) and 21(2)(h) is not to be taken to be made out—
(a) unless—
(i) the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and
(ii) there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or
(b) unless—
(i) the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and
(ii) the fact did not or does not exist.
In Australian Retailers v Reserve Bank (2005) 228 ALR 28 at 163-164, Weinberg J explained the operation of the broadly equivalent sections in the then Administrative Decisions Judicial Review Act 1977 (Cth) (“ADJR Act”) as follows:47
[576]…Section 5(1)(h) provides for review on the ground “that there was no evidence or other material to justify the making of the decision”. However, that section is qualified by s 5(3), which provides as follows:
(3) The ground specified in paragraph 1(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
[577]Section 5(3)(a), in substance, seems merely to restate the doctrine of jurisdictional fact…
[578]Section 5(3)(b) deals with a different issue, namely whether the decision under challenge was “based…on the existence of a particular fact, and that fact did not exist”. This paragraph was considered by the Full Court in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212; 27 ALD 181 (Curragh), where it was held, at FCR 220-4; ALD 187-91, that s 5(3)(b) could only be satisfied if:
·the decision was “based on” the existence of a “particular fact”, meaning a fact that was “critical to the making of the decision”;
·there was no evidence or other material to support the finding of that particular fact; and
·it could be shown that the particular fact did not exist.
[579]In Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; 190 ALR 402; [2002]
HCA 32 (Rajamanikkam), the High Court was concerned with the equivalent to s 5(1)(h) of the ADJR Act, which formerly
Australian Retailers v Reserve Bank (2005) 228 ALR 28 at [576]-[580].
appeared in the Migration Act a s 476(1)(g). The equivalent to s 5(3) was s 476(4). There are difficulties with aspects of the reasoning in Rajamanikkam, and these are canvassed by Aronson at pp 242-5. However, it can at least be said that Curragh was cited with approval by Gleeson CJ at [33], Kriby J at [115]-[118] and Callinan J at [140] in Rajamanikkam.
[580]The last element of s 5(3)(b) operates to confine the no evidence ground to a case where the applicant can actually negative the fact on which the decision was based. It requires the applicant to adduce evidence positively establishing the contrary to the “fact” that it is alleged the decision-maker based its decision on, and in respect of which it is claimed there is no supporting evidence or other material. Meeting this second limb of s 5(3)(b) can be extremely difficult. The mere absence of evidence as to a fact will not establish its non-existence. As Aronson notes at p 244:
“Further second limb questions have concerned whether it covers; a decision-maker’s finding of a fact’s non- existence; a state of affairs rather than a specific fact; predicted facts rather than just past facts; a decision- maker’s disbelief (either wholly, or to the relevant level of persuasion) of an assertion of facts; or a refusal to exercise a statutory power, rather than a decision to exercise it. [Footnotes omitted]”
There has been debate as to whether the effect of the Commonwealth equivalent of s 24 of the JR Act broadens or narrows the operation of the no evidence rule. This contention was dealt with in Sunchim Pty Ltd v Commissioner of Taxation [2010] FCA 21 by Perram J at paragraphs [31]-[41], particularly [40] and [41]. The current state of the law favours that s 24 of the JR Act narrows the operation of the ground, in that the requirements of that section are cumulative on the content of s 20(2)(h) of the JR Act. This is the interpretation which accords with the reasoning of Weinberg J. I am of the view that this also reflects the proper construction of ss 20(2)(h) and 24 of the JR Act. I will adopt this construction when dealing with this ground.
In this case, it does not appear that Mr O’Brien is relying on s 24(a) of the JR Act, namely that there was the absence of a jurisdictional fact. Rather, he is relying upon the operation of s 24(b) of the JR Act. In that respect I will turn to Mr O’Brien’s contentions.
No evidence contention
Mr O’Brien, at paragraphs [42]-[47] of his reply submissions, addressed certain submissions which had been made on behalf of the Commissioner. It is these submissions which appear to potentially engage the no evidence ground. I will set these submissions out in full rather than seeking to paraphrase them. They are as follows:48
The relevant paragraphs from Mr O’Brien’s submissions are precisely replicated, complete with any typographical or grammatical errors.
42. Respondents’ submission (paragraph 79);
The respondent submits that
“there was sufficient evidence, which the decision maker was entitled to consider, capable of satisfying her there was evidence to conclude the applicant was not suitable to be a recruit.”
“Alternatively, it appear the applicant is asserting, upon the information available to the decision maker, the decision of the delegate in refusing this application to become a recruit within the Queensland Police Service was so unreasonable that no reasonable decision maker could reach that conclusion.”
43. The applicant asserts that there is no evidence to substantiate either matter. The respondent submissions refer to ‘sufficient evidence’, however has failed to provide reference. The applicant submits that that there is insufficient factual evidence to support the decision of Assistant Commissioner Scanlon.
44. Disobey Direction
Allegation - That the applicant disobeyed direction was allegedly given by Senior Sergeant Day on an unknown date, sometime in 2003. The alleged direction was not ot allow Senior Constable Fossell to operate vessel A.P. Anderson solo. It’s noteworthy the applicant, Sergeant O’Brien was Acting Senior Sergeant (OIC) for the majority of 2013. Senior Sergeant Day promoted to the position on about 11/10/2003. (CC - 17). During the period the applicant was OIC, then Sergeant Day was seconded as the staff officer for then Assistant Commissioner Stewart (former Commissioner).
45. Lack of evidence as follows;
a.No date of alleged direction was given was established
b.No record of direction, email, notice, policy, diary notation, training plan.
c.All officers interviewed, were either not aware or vague about the direction
d.Two statements provided by Senior Sergeant DAY (CC 6 & CC 10) did not contain a date of direction or wording of said direction. Statements changed between investigations due to claiming a witness Flori (who was not present). (CC - 13, pg. 73-top)
e.Senior Constable Fossell provided a submission upon plea of guilty to his matter however disputed the direction. (CC - 13, pg 76, para 2.1)
f.Senior Constable Fossell provided an email where Senior Sergeant Day had provided an assessment report stated he was competent at operating all vessels in 2002. (CC - 13, pg 85-86)
g.Senior Constable Fossell provided evidence that Senior Sergeant Day had allowed him to drive the vessel solo in late 2003. (CC - 13, pg 76, para 3.0)
h.Gold Coast Water Police had a significant history of staff complaints. Between 2003 - 2005. Seven staff out of twelve staff had complaints made against them by other staff, majority initiated by Senior Sergeant Day. Bulling behaviour was identified in Senior Constable Fossell report. (CC - 13, pg 82, Para 9.0)
i.Senior Sergeant Day kept a detailed daily diary of all activities, no diary entry for the direction. Detailed diary entry when the accident occurred made, despite it occurring on a Sunday when he was off duty. No diary entry recording the direction. (CC - 13, pg 91 - 98)
j.Evidence presented to the investigator that Senior Sergeant Day had been untruthful in his statement about having a witness to the applicant making admissions (Senior Sergeant Flori). Senior Sergeant Day submitted a new statement. (CC - 13, pg. 73). No action taken against Senior Sergeant Day for his untruthfulness.
46. Overpayment
Allegation - The applicant was over paid due to an administration error in 2003. The applicant contacted South Eastern Region HR and advised Officer in Charge of a suspected overpayment. The applicant did not receive advice that there was an overpayment. 21st April 2005 a complaint was lodged by unknown officer, the applicant was not actually advised of the overpayment until 27th October 2005. The applicant has always maintained that he did not breach any policy. (CC - 17, pg 22, 7.5 Overpayments)
47. Lack of evidence;
a. Complaint was lodged on 21st April 2005 by an unknown person (CC - 17, pg. 45) Overpayment in 2003. Complaint lodged in April 2005.
b. The applicant only found out about the overpayment by HR on 27th October 2005 (CC - 16, pg 17, top BOB)
c. The applicant kept the payslip in a drawer with ‘post it note’ (keep). The applicant believed he was over paid and advised HR. Despite advising HR, it was never confirmed that an overpayment had occurred.
d. There is no indication the applicant attempted to hide the overpayment. All statements indicated the applicant advised all staff working that day of the error.
e. Overpayment was an administration error, HR officer entered 2002 instead of 2003 as it appears a form was filed incorrectly by administration staff. (CC 17)
f. Administration staff who made the error was never interviewed or subject to a complaint or sanction.
g. Payment slip is very complicated, difficult to establish overpayment. Two pages with over 200 line items on the payslip. (CC 17 pg 38 -39)
h. HR did not advise of the overpayment after being contacted. As per policy it was QPS responsibility to advise the officers. No person discipline for failure to advise. (CC-17, Pg 22 -23)
i. Overpayments were common at that time, identified by Davey and Millard. Overpayments rules were negated in the EBA due to the prevalence of them.
j. The applicant advised HR and OIC, which was the only requirement under the Human Resource Manual.”
In addition to those submissions, Mr O’Brien also focussed on one particular example which he submitted was apparent from the final decision as it concerned the Overpayment Incident. In this respect, Mr O’Brien submitted that his only identified breach for the Overpayment Incident was of the Human Resources (“HR”) Manual.49 He further submitted that the overpayment itself was not an offence, and that he had complied with the HR Manual by contacting the Officer-In- Charge, being SS Day. As part of his submission, he pointed to a statement which appeared in the 4 April 2006 memorandum of Superintendent Pointing. That statement was as follows:50
“Enquiry was originally made with HR because of conversation between Senior Sergeant Barry Day and Sergeant O’Brien: during which Sergeant O’Brien made reference to a big overpayment that he had received and was not going to repay. Ms Maguire was advised by Inspector Payne to advise her manager of the overpayment as per HR but to take no action at this time until further advice from this branch. Ms Maguire also advised to ensure matter kept confidential at this time.”
Mr O’Brien submitted that this was evidence that he had complied with the HR Manual.
Determination of the contention: no evidence or other material to justify the making of the decision
The matters raised by Mr O’Brien in paragraphs [45] and [47] of his reply submissions are matters which go to the merits of the decision, rather than ones
The HR Manual was not before the decision-maker, but the relevant extract of it was reproduced in the 4 April 2006 memorandum of Superintendent Pointing at CC-17 page 5, paragraph 6, being section 9.2.4.2 of the HR Manual.
See Exhibit CC-16 at p 66.
which address what is required to be established for a no evidence ground of review pursuant to ss 20(2)(h) and 24 of the JR Act.
The court, on a judicial review application, is not conducting a merits hearing. As Wigney J observed in Minister for Immigration and Border Protection v Stretton (with Allsop CJ agreeing), in the context of an alleged unreasonableness ground:51
“The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision…or if the decision is within the “area of decisional freedom” of the decision-maker…it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently. Unfortunately, and with the greatest respect to the primary judge, it is difficult to escape the conclusion that that is what occurred here.” (References omitted)
I have, under the second ground of failure to meet a requirement of law, referred to some of the material which related to the submissions made by Mr O’Brien that there was no direction for SC Foessel not to operate the relevant vessel solo and that he did not know of the direction. For the reasons previously stated, there was clearly material before the decision-maker which could have supported a finding that such a direction had been given and that Mr O’Brien knew of it. This included that SC Foessel himself unambiguously acknowledged that such a direction had been given.
On my reading of the material in relation to the critical path of reasoning, there is some evidence from which a decision-maker could have made the relevant findings contained in the final decision.
That is not to say that this Court would have found in the same way as the decision- maker. This proceeding is not concerned with a re-hearing of the merits of the underlying decision.
In relation to the particular example which Mr O’Brien relied upon in respect of the Overpayment Incident, I will make some brief observations.
First, the extract taken from Exhibit CC-16 at page 66 that is relied upon by Mr O’Brien did not particularly help Mr O’Brien. It records that there had been a conversation between Mr O’Brien and SS Day. In it, SS Day has stated that Mr O’Brien had said to him words to the effect that there was “a big payment he had received and was not going to repay”.
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 29-30 [92].
The purpose of informing an Officer-in-Charge pursuant to the HR Manual is to assist in facilitating payment. Such a statement as set out above would not have been a statement for that purpose, as seems to have been submitted by Mr O’Brien, in that it purports to record that Mr O’Brien had said to SS Day that he was not going to repay the money.
Secondly, whilst Mr O’Brien in his interview had identified that he had contemporaneously told a number of officers about his receiving an overpayment, he did not identify that one of those officers was SS Day. Three officers were identified as persons who Mr O’Brien had contemporaneously spoken to in a lunchroom about the overpayment at or about the time of the receipt of the funds. They were Officers Scott, Kelly and Brown. Each of the officers were interviewed. No one identified that SS Day was present on that occasion.
Thirdly, I do not read the entry relied upon in Exhibit CC-16, at page 66, as being a record that Mr O’Brien had necessarily made this statement to SS Day at or about the time of the payment. It is, at least, equally consistent with it having been made on a later date. The fact that the purported conversation included an alleged statement of an intent not to repay supports that it may have been made at a later date. The inference being that SS Day would have promptly reported such a conversation.
Fourthly, and by reason of the third point, I raised with Mr O’Brien during the oral submissions whether the material before the decision-maker was to the effect that Mr O’Brien informed SS Day of the overpayment at or about the time of the overpayment. The response of Mr O’Brien was that at the relevant time of receiving the overpayment, Mr O’Brien was not aware of what the HR Manual said.52 That is, he was not aware at that time, of the obligation to inform the Officer-in-Charge.
Fifthly, what Mr O’Brien had emphasised in his interview was that some weeks after the overpayment, he had spoken to an unnamed person in HR, identifying that he had received an overpayment. That person was not the Officer-in-Charge. At that time in the interview, he did not identify that he had specifically told his Officer-in-Charge of the overpayment. He had stated that he told others in the office without being specific as to who they were.
This analysis of the material demonstrates, in my view, that there was some evidence from which a finding of non-compliance with the HR Manual could have been made. Again, I emphasise that I am not making a decision on a merits basis. The above observations are only directed to whether the no evidence ground has been made out in respect of the particular example given.
For all of these reasons, this particular ground is not made out.
Conclusion
In conclusion, Mr O’Brien has not made out any of his grounds of review, and accordingly, the application ought to be dismissed.
T1-107 l 17.
I will hear the parties on costs.
0
7
4