Officer Jones v Superintendent McNab - [2020] QCATA 84

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Officer Jones v Superintendent McNab [2020] QCATA 84

PARTIES: LYNETTE JONES

(applicant/appellant)

v

SUPRINTENDENT BRUCE MCNAB

(respondent)

APPLICATION NO/S:

APL184-19 and APL 201-19

ORIGINATING APPLICATION NO/S:

OCR297-18

MATTER TYPE:

Appeals

DELIVERED ON:

3 June 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member
Member Fitzpatrick

ORDERS:
1. The application for leave to appeal or appeal in APL184-19 is dismissed.

2. The application for leave to appeal or appeal in APL201-19 is dismissed.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – where decision made to redeploy officer - whether decision is a reviewable decision – whether tribunal has jurisdiction– where matter dismissed for want of jurisdiction

Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Flanagan v Stewart & Anor [2016] QSC 155
Hurley v Stewart & Anor [2016] QSC 154
Irwin v Stewart (Commissioner of Police) & Anor [2015] QSC 350
Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340
Jones v McNab [2019] QCAT 213

O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356.

Acts Interpretation Act 1954 (Qld), s 35(c)

Crime and Corruption Commission Act 2001 (Qld), s 4, s 5, s15, s41(1), s 45(2), s 219BA, s 219D(1), s 219D(2), s 219I, s 219J
Industrial Relations Act 1999 (Qld)
Police Service Administration Act 1990 (Qld), s 1.4, s 1.5, s 4.8, s 4.9, s 4.10
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 17, s 20, s 24

REPRESENTATION:

Applicant:

M Black of Counsel

Respondent:

C Capper, A/Principal Legal Officer of the Queensland Police Legal Unit

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is an appeal on a question of law going to the scope of the tribunal’s review jurisdiction pursuant to the Crime and Corruption Act 2001 (Qld) (the CC Act). In deciding an appeal against a decision on a question of law only, the Appeal Tribunal has the powers set out in section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Leave to appeal is not required on a question of law.
Lynette Jones (Officer Jones or the appellant) appeals against two decisions of the Tribunal made respectively on 2 July 2019 and 31 July 2019, whereby the Tribunal decided in effect that:
(a)the Tribunal does not have jurisdiction to review the purported reviewable decision, that is, a notice of temporary re-deployment and directions given to her by Superintendent McNab (the Superintendent or the respondent) dated 16 October 2018; and
(b)the application for review filed by the appellant was dismissed pursuant to s 47 of QCAT Act, on the grounds that the want of jurisdiction rendered the application ‘frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process.’

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCATA 84
Decision Date: 3 June 2020

CaseChat Overview and Summary

The appeals in Officer Jones v Superintendent McNab concern the review of a decision to redeploy Officer Jones from her position within the Queensland Police Service (QPS) to another workplace. The decision was made under the Police Service Administration Act 1990 (Qld) and was based on allegations of workplace harassment and bullying. Officer Jones sought a review of the redeployment decision under the Corrective Services Commissioner Act 2006 (Qld) (CC Act). The appeals focus on whether the decision to redeploy was a "reviewable decision" for the purposes of section 219BA(1) of the CC Act and, if so, whether the Queensland Civil and Administrative Tribunal (QCAT) had jurisdiction to review it.

The primary legal issue in these appeals was whether the decision to redeploy Officer Jones constituted a "reviewable decision" under section 219BA(1) of the CC Act. The court had to determine the proper construction of section 219BA(1)(a) of the CC Act, which defines "reviewable decision" to include decisions related to allegations of corruption against a prescribed person. Officer Jones argued that her redeployment decision fell within the definition of a reviewable decision and, therefore, QCAT had jurisdiction to review it. The court also had to consider whether the redeployment decision was a disciplinary decision, which would fall under the exclusive jurisdiction of QCAT under section 219D(1) of the CC Act.

The court found that the decision to redeploy Officer Jones was not a "reviewable decision" within the meaning of section 219BA(1) of the CC Act. The court concluded that the redeployment decision did not relate to an allegation of corruption against a prescribed person, as required by the statutory definition. Instead, the redeployment was a workplace safety measure under the Work Health and Safety Act 2011 (Qld). Therefore, the court held that QCAT did not have jurisdiction to review the decision. The court further noted that the redeployment decision was not a disciplinary decision and, thus, did not fall under QCAT's exclusive jurisdiction as provided in section 219D(1) of the CC Act.

As a result of the court's reasoning, both appeals were dismissed. The court found no error in QCAT's decision that it lacked jurisdiction to review the redeployment decision. Consequently, the orders of the court were that the application for leave to appeal or appeal in APL184-19 and APL201-19 were dismissed.

Orders

Orders of the court

1. The application for leave to appeal or appeal in APL184-19 is dismissed.

2. The application for leave to appeal or appeal in APL201-19 is dismissed.

Background

Background to the litigation

The appeals are to be determined together. To the extent that the outcome of the second appeal is dependent on the outcome of the first appeal, we will first deal with the appeal from the decision made on 2 July 2019, being APL184-19.Background Officer Jones is a Senior Constable of the Queensland Police Service (QPS). She holds a permanent police officer position in a particular Section of the QPS. On 18 April 2018, a QPS Deputy Commissioner provided a Notice of temporary re-deployment to another workplace and directions to the appellant. Relevantly the Notice provided:It has been brought to my attention there are allegations of workplace harassment and bullying within the ….. Section. In accordance with my duty under the Work Health and Safety Act 2011 (Qld) to, as far as practicable, eliminate or minimise risks to health and safety in the workplace, I have determined it is necessary to temporarily redeploy you to another workplace and issue you with further directions.You are directed to:(a)Report for duty…at the …. Unit…Brisbane.… On 16 October 2018, Superintendent McNab gave the appellant a further Notice in the same terms, adding: ‘…I have determined it is necessary to continue your redeployment ……pending an outcome of this investigation.' The notice dated 16 October 2018 is said to be made under sections 4.8 and 4.9 of the Police Service Administration Act 1990 (Qld) (PSA Act). Those sections empower the QPS commissioner to do all things necessary, including the giving of directions, for the efficient and proper administration, management and functioning of the police service. Officer Jones sought to review the decision dated 16 October 2018 in QCAT’s review jurisdiction, resulting in the decisions now the subject of these appeals. There is no dispute about the relevant factual background in relation to this appeal. Although the Superintendent does not agree with Officer Jones’ contention that the redeployment referred to in the notice is on an indefinite basis, that point does not affect the outcome of the appeal. For the reasons set out in the paragraphs that follow, the appeals must fail.Ground of Appeal Officer Jones’ ground of appeal is that the Tribunal erred in finding that the respondent’s decision of 16 October 2018 is not a ‘reviewable decision’ for the purposes of s219BA(1) of the CC Act. The appeal raises an issue as to the proper construction of section 219BA(1)(a) of the CC Act. Officer Jones submits that the construction she contends for is consistent with a broad contextual reading of the CC Act which bestows jurisdiction for disciplinary proceedings upon the Tribunal.Statutory Framework We refer in these reasons for decision to the relevant legislative provisions current at the time that the notice was given and at the time the Tribunal considered its jurisdiction, observing that there have been significant legislative amendments to the scheme for police discipline resulting from amendments effective from 30 October 2019.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 219BA (1) and (2) defines ‘reviewable decision’:(1) A reviewable decision means –(a)a decision made in relation to an allegation of corruption against a prescribed person, other than a decision made by a court or QCAT; or(b)a finding mentioned in the Police Service Administration Act 1990, section 7.4 (2A)(b) or 7A.5 (1)(b) that corruption is proved against an officer.(2) In this section – decision, made in relation to a disciplinary allegation of corruption, if a disciplinary declaration is made, includes the disciplinary declaration.Note –A reviewable decision may also involve a failure to make a disciplinary declaration.……. The definition of ‘prescribed person’ for s 50(4)(a)(ii) is modified by s 219BA(2) for Chapter 5, Part 2, such that for a CCC review of a reviewable decision, a prescribed person includes an officer against whom a disciplinary declaration was not made if a ground of appeal states that it should have been made . Chapter 5, Part 2, Division 2 is entitled ‘QCAT’s jurisdiction’. This Division provides, in s 219C, for QCAT’s jurisdiction to conduct disciplinary proceedings. Section 219D(1) provides that QCAT has exclusive jurisdiction to hear and decide ‘an allegation of corrupt conduct against a prescribed person.’[12] Section 219D(2) provides that subsection (1) ‘applies to the exclusion of authority given by law to any other person or tribunal to hear and decide, at first instance, an allegation of corrupt conduct.’ [13] Accordingly, in s 219D(2), the tribunal’s review jurisdiction is contemplated. [12]CC Act, s 219D(1).[13]Ibid, s 219D(2). Chapter 5, Part 2, Division 3 is entitled ‘Proceedings’. Section 219F relevantly provides that the CCC (or otherwise, a chief executive officer of a unit of public administration) may apply to QCAT to hear and determine an allegation of corrupt conduct against a prescribed person. This provision confers original jurisdiction on QCAT. QCAT’s review jurisdiction under the CC Act is conferred by s 219G. Section 219G is entitled, ‘Proceedings relating to reviewable decisions’ and provides as follows:(1) The Commission or a prescribed person against whom a reviewable decision has been made may apply, within the period mentioned in subsection (2) and otherwise as provided under the QCAT Act, to QCAT for a review of the reviewable decision.(2) The application must be made –(a)If the reviewable decision relates to a decision or finding mentioned in the Police Service Administration Act 1990, section 7.4 (2A), 7A.4 or 7A.5 – within 14 days after the day on which the reviewable decision or finding was given; or(b)Otherwise – within 14 days after the day on which the reviewable decision was announced. Review of a reviewable decision must proceed by way of rehearing: s 219H. Unless leave of the tribunal is granted for fresh or additional evidence, the rehearing must proceed on the evidence that was given in the proceeding before the original decision-maker.[14][14]CC Act s 219H.

Ratio Decidendi

Legal Principle Established

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