Patton v Mareangareu
[2021] VSCA 295
•3 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0025
| SHANE PATTON (IN HIS CAPACITY AS CHIEF COMMISSIONER OF POLICE) | Applicant |
| v | |
| SIMON MAREANGAREU | Respondent |
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| JUDGES: | PRIEST, McLEISH and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 October 2021 |
| DATE OF JUDGMENT: | 3 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 295 |
| JUDGMENT APPEALED FROM: | [2021] VSC 15 (Ierodiaconou AsJ) |
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ADMINISTRATIVE LAW – Judicial Review – Appeal – Chief Commissioner of Police declined to reappoint police officer pursuant to Victoria Police Act 2013 s 136(3) – Officer dismissed on basis of convictions – Convictions quashed on appeal – Whether Chief Commissioner erred by considering subject matter of convictions in declining to reappoint – No error shown – Character and reputation of officer seeking reappointment relevant to exercise of power – Public Service Board v Morris (1985) 156 CLR 397, considered – Victoria Police Act 2013 ss 8, 16, 27, 28, 30, 135, 136, 137 – Victoria Police Regulations2014 r 5.
STATUTORY CONSTRUCTION – Whether Victoria Police Act 2013 s 136(3) provides right to reappointment on conviction being set aside – No right to reappointment – Provision confers discretionary power on Chief Commissioner – Whether s 136(3) a distinct power of reappointment or informs general power of appointment – Distinct power conferred – Saraswati v The Queen (1991) 172 CLR 1, explained – Whether s 136(3) requires Chief Commissioner to disregard subject matter of conviction set aside – No such requirement – Characterising provision as beneficial unhelpful to interpretative task – NSW Aboriginal Land Council v Minister Administering the Crown Land (2016) 260 CLR 232, applied – Presumption that statutory consequences of conviction cease when conviction set aside inapplicable – Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220, Rimanic v Business Licensing Authority (2002) 129 A Crim R 356, distinguished – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr A Palmer QC with Mr D Porteous | Clayton Utz |
| For the Respondent: | Mr E P White | Tony Hargreaves & Partners |
PRIEST JA
McLEISH JA
KENNEDY JA:
Introduction
By December 2014, the respondent, Simon Mareangareu, had been a police officer for about nine years, holding the rank of senior constable.
On Christmas Day 2014, the respondent was on duty with another officer, Dennis Gundrill, when he encountered two youths, Stuart Laird, aged 16, and Kyan Foster, aged 17, in the vicinity of a 7-Eleven store in Canterbury Road, Vermont. As a result of what then transpired, the respondent was subsequently charged on indictment with: intentionally causing injury to Foster (charge 1) and falsely imprisoning him (charge 2); attempting to pervert the course of justice (charges 3 and 4); and perjury (charges 5, 6 and 7). Gundrill was charged on the same indictment with: falsely imprisoning Laird (charge 8); attempting to pervert the course of justice (charges 9 and 10); and perjury (charge 11).
Following a trial conducted in the County Court throughout May and June 2018, on 21 June 2018 the jury found the respondent guilty of common assault (as a purported alternative to intentionally causing injury) and of attempting to pervert the course of justice (charge 4), but not guilty of all other charges. Gundrill was acquitted of all charges.
On 23 August 2018, the trial judge sentenced the respondent to be imprisoned for 12 months for attempting to pervert the course of justice, and imposed a fine of $5,000 for common assault.
The respondent was dismissed from Victoria Police three months later, on 22 November 2018.
On 8 May 2019, this Court set aside the respondent’s convictions and entered verdicts of acquittal.[1]
[1]Mareangareu v The Queen (2019) 277 A Crim R 319; [2019] VSCA 101.
Following the quashing of his convictions, the respondent sought reappointment to Victoria Police, relying on s 136(3) of the Victoria Police Act 2013 (‘the Act’). By a decision dated 9 December 2019, however, the applicant’s delegate decided to refuse his reappointment.
On 24 February 2020, the respondent filed an originating motion in the Trial Division seeking judicial review of the delegate’s decision. In particular, the respondent sought an order in the nature of certiorari quashing the decision not to reappoint him in his previous rank as a member of Victoria Police, and an order in the nature of mandamus remitting the application for reappointment to the applicant to be determined according to law.
The originating motion came before an associate judge on 14 October 2020. On 28 January 2021, she granted the relief sought by the respondent.[2]
[2]Mareangareu v Patton (in his capacity as Chief Commissioner of Police) [2021] VSC 15 (‘Reasons’).
The applicant seeks leave to appeal against the decision, claiming that the associate judge
erred in finding that in determining an application for reappointment under s 136(3) of the [Act], while the Chief Commissioner must assess whether the applicant is of good character and reputation, in making that assessment the Chief Commissioner is not permitted to take into consideration any conduct which formed the basis of criminal convictions which have been subsequently set aside.
In our opinion, for the reasons that follow, the application for leave to appeal should be granted and the appeal allowed.
Steps leading to dismissal
In order to understand the issues raised by this application, it is necessary to summarise the steps that led to the respondent’s dismissal from Victoria Police in a little more detail.
On 9 December 2015, as a consequence of the allegations which had been made against him — but prior to him being formally charged with any offence — the respondent was served with a notice of interim action pursuant to s 135(1)(a) of the Act, transferring him to other duties. Upon the filing of the criminal charges, a further notice of interim action, pursuant to s 135(2)(a) of the Act, was served on the respondent on 5 January 2016. Once more, the respondent was transferred to other duties. The respondent remained as a police officer, performing ‘other duties’, until the jury convicted him at trial.
Following the jury’s verdict, but prior to the plea in mitigation and sentence, on 21 June 2018 the respondent was served with a further notice of interim action pursuant to s 135(2)(c) of the Act, suspending his employment with pay. Subsequently, on 9 July 2018, a supplementary notice was served on the respondent, notifying him that from that date his suspension would be without pay.
We pause to note that, so far as relevant, s 135 provides:
135Officer believed to have committed an offence punishable by imprisonment
(1) If the Chief Commissioner reasonably believes that a police officer … has committed an offence punishable by imprisonment, the Chief Commissioner may cause an investigation into the matter under the criminal law to be commenced and may, at any time during that investigation—
(a) transfer the officer to other duties;
…
(2) If a police officer … has been charged under the criminal law with an offence punishable by imprisonment (whether in Victoria or elsewhere) the Chief Commissioner may—
(a) transfer the officer to other duties; or
…
(c)suspend the officer with or without pay.
On 24 August 2018, prior to the determination of the respondent’s appeal against conviction, Assistant Commissioner Russell Bassett, of Victoria Police Professional Standards Command, authorised an inquiry — purportedly pursuant to s 136 of the Act — concerning the respondent’s convictions in the County Court (‘the s 136 inquiry’).[3] The hearing of the s 136 inquiry was allocated for determination to Shaun Le Grand, as delegate of the Chief Commissioner.
[3]Although s 136 does not provide in terms for an inquiry, it appears that the process undertaken was intended to afford natural justice to the respondent according to common law, along lines similar to the alternative pt 7 div 1 procedure in respect of ‘breaches of discipline’.
By a letter to Mr Le Grand dated 19 October 2018, Chris Gorissen, Legal Manager of the Police Association of Victoria, made an application on the respondent’s behalf to adjourn the s 136 inquiry until the hearing and determination of the respondent’s applications to this Court for leave to appeal against conviction and sentence.
The request for an adjournment was refused, and, on 9 November 2018, the s 136 inquiry proceeded at the Hopkins Correctional Centre, Ararat, where the respondent was serving his sentence of imprisonment. That day, Mr Gorissen again made an application on the respondent’s behalf to adjourn the hearing of the s 136 inquiry or, alternatively, to reserve any final determination until the applications for leave to appeal had been finally resolved. That request was also rejected, and the hearing proceeded. At the ensuing hearing, the respondent was represented and submissions were made on his behalf.
On 21 November 2018, Mr Le Grand published a notice of determination. Pursuant to s 136(1)(f) of the Act, he resolved to dismiss the respondent from Victoria Police, effective from 4.00 pm on 22 November 2018. Mr Le Grand also published a ‘Criminal Charge Inquiry Report’, setting out his reasons.
Following his dismissal, on 29 November 2018 the respondent lodged an application to the Police Registration and Services Board (‘the PRS Board’) to review Mr Le Grand’s decision.
On 18 January 2019, Mr Gorissen wrote to Graham Knights, the Secretary of the PRS Board, advancing submissions on behalf of the respondent with respect to the PRS Board review. Among other things, the respondent submitted that Mr Le Grand erred in rejecting the request to adjourn the s 136 inquiry until the respondent’s applications for leave to appeal had been determined. On behalf of the Chief Commissioner, Acting Inspector Justyn Zebrowski provided responsive submissions to the PRS Board. Among other things, Acting Inspector Zebrowski submitted that s 136(3) of the Act ‘makes it clear that the legislature intended to give the Chief Commissioner the power to make a decision of dismissal … before applicable appeal rights are exhausted’.
The PRS Board conducted a review hearing via video-link from the Hopkins Correctional Centre on 13 February 2019. Submissions were made on the respondent’s behalf that the decision to dismiss him from Victoria Police was unreasonable, and that it ought to be set aside and remitted to the Chief Commissioner with a direction that any further action pursuant to s 136 of the Act be stayed until the determination of the respondent’s applications for leave to appeal.
On 4 March 2019, the PRS Board upheld the decision of the Chief Commissioner to dismiss the respondent pursuant to s 136(1)(f). No challenge is made to that decision.
Following this Court’s judgment on 8 May 2019, the respondent applied, pursuant to s 136(3) of the Act, for reappointment to Victoria Police. The application was made by a letter dated 19 June 2019 from Mr Gorissen to Graham Ashton, then Chief Commissioner of Victoria Police.
Subsequently, further correspondence was exchanged between Mr Gorissen on the respondent’s behalf, and Acting Commander Mark Porter, the Chief Commissioner’s delegate appointed to determine the application for reappointment. The respondent’s application for reappointment was refused. By letter to Mr Gorissen dated 9 December 2019, Acting Commander Porter advised of the refusal in the following terms:
I have now twice previously invited the [respondent] to address my concerns regarding his character as it was revealed through his conduct on 25/12/2014 and in the preparation and filing of proceedings against Laird and Foster. To assist with that process in my letter dated 27/8/19 I referenced a list of points which I referred to as factual matters. You have chosen not to address any of my concerns but to instead argue that any reference whatsoever to the points listed was incorrect at law.
The only indication that the applicant considered the list was his denial of any criminality or misfeasance on his part with regards to any of the points. This blanket denial without any further evidence or submission does not allay my concerns regarding his character.
Accordingly, I have made the decision not to reappoint the applicant in accordance with the discretion set out at s 136(3). The reason for this decision is that I am not satisfied that the applicant is of good character and reputation.
Assessing good character and reputation involves examining past behaviour with respect to Victoria Police’s values. The applicant’s behaviour in the matter that lead [sic] to his dismissal did not accord with Victoria Police’s values of respect, professionalism and integrity. The particulars of that behaviour were set out in Annexure 1 of my letter dated 27/8/2019 and include the exercising of poor judgement in invoking and exercising a power of search, the use of excessive force in undertaking that search and the preparation of misleading statements that were designed to cover up his failings. Rather than admit any failings, the applicant was prepared to see two children falsely charged with serious offences. The fact that the applicant was acquitted of associated criminal charges on appeal does not substantially reduce the gravity of that behaviour.
It is in the public interest that Victoria Police maintains its integrity in the eyes of the community. This is essential to ensuring that Victoria Police can function effectively as a law enforcement organisation. Dishonesty and excessive use of force by police officers in the course of their duties erode that integrity and community confidence. While it is difficult to assess the damage that the applicant’s behaviour has done in this regard, it has no doubt been significant. It is very likely that reappointment of the applicant as a police officer would only exacerbate those negative effects. I consider that it would be contrary to the public interest to reappoint the applicant as a police officer.
The challenge to the refusal to reappoint the respondent
By an originating motion filed on 24 February 2020, the respondent sought judicial review of the delegate’s decision. As mentioned, he sought an order in the nature of certiorari quashing the applicant’s decision not to reappoint him in his previous rank as a member of Victoria Police, and an order in the nature of mandamus remitting his application for reappointment as a member of Victoria Police to the applicant to be determined in accordance with law. The ground ultimately relied upon was:[4]
The [applicant] committed jurisdictional error in determining the [respondent’s] application for readmission as a member of Victoria Police by falling into errors of law thereby affecting his jurisdiction by misconstruing the [Act], especially s 136.
[4]A second ground was not pressed. It was in the following terms:
2. Further, and in the alternative, the [applicant] made erroneous findings and reached mistaken conclusions concerning the [respondent’s] good character and reputation.
Key provisions of the Act
Before turning to a consideration of the judge’s reasons, it is convenient to set out the key provisions of the Act.
Section 6 of the Act provides that the police force of Victoria ‘is constituted by a body established by this section known as Victoria Police’. By s 7, Victoria Police consists (among others) of the Chief Commissioner, Deputy Commissioners, Assistant Commissioners and other police officers. Section 8 provides that the role of Victoria Police ‘is to serve the Victorian community and uphold the law so as to promote a safe, secure and orderly society’. Section 9 provides that the functions of Victoria Police include: preserving the peace; protecting life and property; preventing the commission of offences; detecting and apprehending offenders; and helping those in need of assistance.
Part 3 of the Act is entitled ‘Victoria Police Personnel’. Section 16, found in div 2 of pt 3, outlines the role of the Chief Commissioner. It relevantly provides that the Chief Commissioner is the chief constable and chief executive office of Victoria Police, and, subject to the direction of the Minister, is responsible for the management and control of Victoria Police.
Section 27, found in div 5 of pt 3, gives the Chief Commissioner power to ‘appoint a person as a police officer’ if prescribed criteria are met. It provides (so far as is relevant):
27 Appointment of police officers
(1) Subject to section 15, the Chief Commissioner may appoint a person as a police officer below the rank of Assistant Commissioner.
...
(2) Subject to subsection (3), the Chief Commissioner may appoint a person under this section only if the person satisfies the prescribed criteria for appointment.
(3) The Chief Commissioner, in exceptional circumstances, may waive any of the prescribed criteria for appointment in any particular case.
Regulation 5(1) of the Victoria Police Regulations 2014 sets out the prescribed criteria:
5Criteria for appointment as a police officer
(1)For the purposes of section 27(2) of the Act, the criteria for appointment as a police officer are that—
(a)the person is of good character and reputation; and
…
By s 28, the appointment of a person as a police officer under s 27 is probationary for a specified period. Section 29 is concerned with the appointment under s 27 of a person who ‘has never been a police officer’, or who ‘is or has been an officer or member of a police force of another jurisdiction’. And s 30, which is also to be found in div 5, is in the following terms:
30 Appointment of former police officers
(1)This section applies to the appointment to Victoria Police of a person who has previously been a police officer.
(2) The Chief Commissioner may appoint the person under section 27 if the person is registered on the Police Profession Register.
(3)If the person is not registered on the Police Profession Register,[[5]] the Chief Commissioner may request the PRS Board[[6]] to advise the Chief Commissioner in writing whether the person—
[5]See s 121 of the Act, which provides that the PRS Board must keep the Police Profession Register.
[6]See the Act s 201.
(a) either—
(i) meets the prescribed criteria for appointment at the proposed rank; or
(ii) subject to the satisfactory completion of training specified by the PRS Board, will meet the prescribed criteria for appointment at the proposed rank; and
(b) has the capabilities to perform the duties of a police officer at the proposed rank.
(4) Subject to section 222(3), the PRS Board must comply with a request under subsection (3).
(5) If the PRS Board’s advice has been requested under this section, the Chief Commissioner must consider the advice in determining whether to appoint the person under section 27 and in determining the rank at which and position to which he or she is appointed.
Part 7 of the Act, as its heading ‘Discipline’ suggests, is concerned generally with breaches of discipline. Division 1, headed ‘Breaches of discipline’, sets out those things that are to be regarded as a ‘breach of discipline’ including, relevantly, having being convicted of an offence.[7] It then provides a regime for the investigation of such breaches;[8] permits a charge to be laid for a breach;[9] prescribes the form of such charge;[10] provides for an inquiry into a charge;[11] allows for the authorisation of persons to either issue a charge or inquire into and determine a charge;[12] sets out the procedure to be followed on an inquiry, including observance of natural justice;[13] describes the determinations that may be made by the person conducting the inquiry and the method of enforcement;[14] and permits the adjournment of an inquiry into a charge.[15]
[7]Ibid s 125(1)(n).
[8]Ibid s 126.
[9]Ibid s 127.
[10]Ibid s 128.
[11]Ibid s 129.
[12]Ibid s 130.
[13]Ibid s 131.
[14]Ibid ss 132 and 133.
[15]Ibid s 134.
In the present case, however, the Chief Commissioner did not apply the regime in div 1 of pt 7. Instead, he purported to follow the legislative route in div 2 of that Part (comprising ss 135 to 137). Division 2 is headed ‘Offences punishable by imprisonment.’
Section 135(2), set out above, gives the Chief Commissioner certain powers if a police officer ‘has been charged under the criminal law with an offence punishable by imprisonment’.
Of pivotal importance to the resolution of the present case, s 136 relevantly provides:
136Charge found proven against officer
(1)If a police officer … has been charged under the criminal law with an offence punishable by imprisonment (whether in Victoria or elsewhere) and the offence has been found proven, the Chief Commissioner may—
…
(f)dismiss the officer.
...
(3)If a police officer … who has been dismissed under this section is subsequently pardoned or his or her conviction is subsequently set aside, the officer may be reappointed to Victoria Police at the rank and seniority he or she held before dismissal.
(4) On a reappointment under subsection (3), the officer is taken—
(a) to have continued in Victoria Police as if he or she had not been not dismissed; and
(b) to have been on leave without pay during the period during which the officer was not performing his or her duties because of the dismissal.
(5)A police officer … is not entitled to any other leave credits for any period during which he or she is taken under subsection (4)(b) to have been on leave without pay.
...
Section 137 is headed ‘Action not to be taken against an officer twice’. It relevantly provides:
The Chief Commissioner must not take action against a police officer … under Division 1 in respect of an act for which that officer has had action taken against him or her under section 136(1).
The principal submissions to the associate judge
The principal issue between the parties is the correct construction of s 136(3) of the Act.
Before the associate judge, the respondent’s counsel submitted that:
(a) the only relevant power of appointment (including reappointment) is that conferred on the Chief Commissioner by s 27 of the Act;
(b) section 136(3) does not confer on the Chief Commissioner a power to reappoint a person who has been dismissed under s 136(1)(f) and who is subsequently pardoned or has their conviction set aside;
(c) the effect of s 136(3) is instead that it bestows a status on such a person of ‘being of good character and reputation’, and thereby provides ‘a deemed satisfaction of the criterion as to character and reputation within the meaning of s 27(2)’;
(d) the effect of this status is that if such a person wishes to be reappointed, the Chief Commissioner has no remaining discretion and must reappoint him or her;
(e) the Chief Commissioner is not, therefore, permitted to conduct any inquiry into the question whether the person is in fact of good character and reputation;
(f) as a result, the Chief Commissioner fell into jurisdictional error when he refused to reappoint the respondent on the basis of concerns about his character; and
(g) even if s 136(3) does confer a power of reappointment, the exercise of that power would be similarly constrained, except that the Chief Commissioner could take supervening conduct into account.
By way of contrast, counsel for the Chief Commissioner contended:
(h) section 136(3) confers on the Chief Commissioner a power of reappointment which may be exercised, or not exercised, at the Chief Commissioner’s discretion;
(i) in exercising that power, the Chief Commissioner is entitled to consider whether the applicant for reappointment is of good character and reputation;
(j) the respondent having failed to satisfy that criterion, the Chief Commissioner was entitled to refuse his application for reappointment; and
(k) alternatively, if the power of reappointment is found in s 27(1) of the Act, that power is also discretionary and may also be exercised having regard to a person’s actual character and reputation.
The associate judge’s reasons
The associate judge found that s 136(3) of the Act:
should be construed beneficially for the police officer … to whom it applies. It applies to a police officer who is dismissed pursuant to s 136(1)(f) as a consequence of a criminal conviction punishable by imprisonment and is subsequently pardoned or where the conviction, as is the case here, is subsequently set aside.[16]
[16]Reasons [112].
Having so found, the associate judge concluded that s 136(3) confers a direct power on the Chief Commissioner (or a delegate) to reappoint a police officer.[17] She assigned four reasons for that conclusion.
[17]Ibid [123].
First, the words of the section ‘may be reappointed to Victoria Police’ ought to be read literally. The police officer may be reappointed. And although the section does not specify who may reappoint, in the context of the Act, it is clearly the Chief Commissioner (or a delegate) who may do so.[18]
[18]Ibid [124].
Secondly, s 136(4) refers to ‘a reappointment under subsection (3)’, this being consistent with the reappointment power residing in s 136(3).[19]
[19]Ibid [125].
Thirdly, ss 136(3) to (5) together provide a specific mechanism for reappointment, so that: s 136(3) speaks directly to the rank and seniority of the reappointed officer; s 136(4) speaks directly to how the officer’s absence is to be considered and provides for continuity of service; and s 136(5) speaks directly to the treatment of leave and provides there should be no leave credits.[20]
[20]Ibid [126].
Fourthly, no section in the Act speaks directly of reappointment other than s 136(3). Although the Chief Commissioner has a general power to appoint in s 27(1), the section does not speak of reappointment.[21]
[21]Ibid [127].
Further, the associate judge held that s 136(3) gives the Chief Commissioner a discretion as to whether or not to reappoint.[22] That discretion is confined by:
(l) section 136(3) itself, in that the Chief Commissioner may only reappoint the officer to the rank and seniority they held before dismissal, and only if they have been pardoned or had their conviction set aside; and
(m) section 8, which provides that the role of Victoria Police ‘is to serve the Victorian community and uphold the law so as to promote a safe, secure and orderly society’, a role which requires that police are of good character and reputation.[23]
[22]Ibid [133].
[23]Ibid [138]–[139].
Critically, the associate judge concluded:
I cannot accept the [respondent’s] submission that s 136(3) has a deeming effect in respect of the police officer’s character and reputation. In exercising their discretion consistently with s 8, the Chief Commissioner must assess whether the police officer is of good character and reputation. However, consistently with the beneficial reading of s 136(3) above, the matters which form the subject of the charges upon which the police officer was convicted and which have been later set aside, must be disregarded in that assessment.[24]
[24]Ibid [140] (emphasis added).
The associate judge said that this conclusion was consistent with principles articulated by the High Court in Commissioner for Railways (NSW) v Cavanough,[25] and by this Court in Rimanic v Business Licensing Authority.[26] She also stated that the conclusion was consistent with s 137.
[25](1935) 53 CLR 220 (‘Cavanough’).
[26](2002) 129 A Crim R 356; [2002] VSCA 64 (‘Rimanic’); Reasons [141]–[142].
On the other hand, the associate judge accepted that good character and reputation were matters relevant to the decision whether to reappoint, and that supervening conduct bearing on those matters could be taken into account.[27]
[27]Reasons [144].
Finally, the associate judge referred to an exchange in the course of parliamentary debate on the Police Regulations (Discipline) Bill 1993, which enacted the predecessor to s 136 of the Act, in which the relevant Minister indicated that the provision for reappointment contained the word ‘may’ rather than ‘must’, because it might not be in an officer’s best interests to be reappointed.[28]
[28]Ibid [146]–[148].
Submissions in the present application
The parties advanced careful and detailed arguments addressing the proper construction of s 136. The applicant supported the associate judge’s conclusion that s 136(3) contained a power to reappoint, and that it was to be exercised on discretionary grounds without the applicant for reappointment being deemed (apart from supervening conduct) to be of good character. But the applicant took issue with the associate judge’s conclusion that the subject matter of the conviction which had been set aside must be disregarded. In that context, he contested the characterisation of s 136(3) as a provision for the benefit of the relevant police officer.
The respondent contended that the associate judge had been correct to hold that the subject matter of the conviction must be disregarded. However, by notice of contention he argued that the correct analysis was that the power of reappointment was found in s 27, not s 136(3), and that the latter provision had the effect of deeming a police officer to be of good character and reputation, so that no inquiry as to those matters was permitted, at least by reference to the subject matter of the conviction. This was said to be another way of reaching the associate judge’s conclusion.
Analysis
The associate judge commenced her analysis of s 136(3) by referring to well-known principles of statutory construction consistent with the High Court’s observations in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT):
[T]he task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[29]
[29](2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted).
She then proceeded to find that the provision ‘should be construed beneficially for the police officer … to whom it applies’.[30] In so doing, she identified the ‘mischief’ addressed by s 136(3) as the dismissal of a police officer based on a conviction subsequently set aside or the subject of a pardon. Put differently, the purpose of the subsection was that the police officer in question be reappointed.[31] The associate judge went on to explain how she identified this purpose, noting that the police officer was ‘the object of the section’, in contrast to sub-s (2) which was said to be directed at the Chief Commissioner.[32] Further, reappointment was to occur on the terms stipulated in sub-ss (3) and (4), as if the dismissal had not occurred. The associate judge also noted the absence of any natural justice obligation, contrasting div 1, and the prohibition against further punishment in s 137.[33]
[30]Reasons [112].
[31]Ibid [113].
[32]Ibid [113]–[115].
[33]Ibid [118]–[120].
It is well-established that the fact that a statute is intended to serve some beneficial purpose will justify giving the provisions of that statute a broad interpretation so as to facilitate that purpose.[34] In a sense, this is no more than an application to a particular class of case of the general principles of statutory construction set out earlier, in which the terms of the statute are construed having regard to its purpose.[35] But there are two related caveats.
[34]NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232, 255–6 [32] (French CJ, Kiefel, Bell and Keane JJ) (‘NSW Aboriginal Land Council’); Rose v Department of Social Security (1990) 21 FCR 241, 244 (Lockhart, Gummow and Einfeld JJ).
[35]NSW Aboriginal Land Council (2016) 260 CLR 232, 270–1 [92] (Gageler J).
First, the early identification of a beneficial purpose may invert the correct approach to statutory construction. As French CJ, Kiefel, Bell and Keane JJ explained in NSW Aboriginal Land Council v Minister Administering the Crown Lands Act:
[T]o commence the process of construction by posing the type of construction to be afforded — liberal, broad or narrow — may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.[36]
[36]Ibid 256 [33].
Secondly, legislative purpose is sometimes only capable of being stated at a very high level of generality. Such statements may not be useful in construing particular statutory language.[37] The statement that legislation has ‘a beneficial purpose’ may therefore not only distract attention from the text, but offer little guidance as to its meaning.
[37]Carr v Western Australia (2007) 232 CLR 138, 142–3 [5]–[7] (Gleeson CJ); Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797, 1804 [33] (Heydon J).
In our view, the present is a case of this latter kind. The notion that s 136(3) is a provision for the benefit of the relevant police officer, even if accepted, is of very limited use in identifying the meaning of the subsection. In the first place, the fact that the provision of an avenue of reappointment (whether mandatory or discretionary) is for the benefit of the police officer says nothing as to the mode by which reappointment may, or must, occur. Moreover, if a discretion is involved, the notion that the provision is for the benefit of the police officer does not meaningfully assist in identifying what matters may, or may not, bear on the exercise of the discretion. Resort to the need for a beneficial construction in this case still leaves the extent to which the legislature has pursued a beneficial purpose unclear.[38]
[38]Nicholls v The Queen (2005) 219 CLR 196, 207 [8] (Gleeson CJ).
With those cautions in mind, it is convenient to go directly to the statutory text.
In our view, three things are clear from s 136(3). The first is that it does not provide for automatic restoration of the appointment of a dismissed police officer to whom it applies. It states that the officer ‘may be reappointed’. When that happens, sub-s (4) provides, in contrast, for certain consequences which are ‘taken’ to follow. This tells against construing ‘may be reappointed’ as if it meant ‘must be’ or ‘is taken to be’ reappointed. Instead, in our view, ‘may be reappointed’ simply means ‘is able to be reappointed’.
Secondly, since reappointment is not automatic, it requires some action to be taken for it to occur. The person who is empowered to effect reappointment by this provision is, necessarily, the Chief Commissioner who has the power of appointment of police officers generally. Consistently with s 45(1) of the Interpretation of Legislation Act 1984, in conferring that power, the word ‘may’ is to be construed as meaning that the power may be exercised at discretion.
Thirdly, s 136(3) does not simply clarify that the Chief Commissioner may use powers otherwise at his or her disposal to reappoint a police officer to whom the provision applies. As the opening words of sub-s (4) confirm, any reappointment that is made occurs ‘under subsection (3)’. In contrast, s 30 (for example), provides for appointment ‘under section 27’. The Act thereby provides a distinct power of reappointment. That is further confirmed by the fact that a reappointed officer has the rank and seniority held before dismissal, and is taken to have continued in Victoria Police as if he or she had not been dismissed. In contrast, an officer appointed under s 27 is subject to a period of probation under s 28. If s 136(3) were regarded as merely confirming that the power of appointment under s 27 were available, imposition of a period of probation would be at odds with the requirement that the officer be taken to have continued in Victoria Police as if he or she had not been dismissed.
In answer to this last point, the respondent submitted that the general provisions governing appointments under s 27 must give way to the specific provisions in ss 136(3) and (4) when a person is reappointed under s 27, relying on observations of McHugh J in Saraswati v The Queen.[39] But the principle in question does not show that there is no power of reappointment conferred by s 136(3). McHugh J stated that ‘when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation’.[40] That means that the Chief Commissioner could not use the power in s 27 to reappoint a dismissed officer, to whom s 136(3) applied, at a rank and seniority lower than that the officer had before dismissal. But it also indicates that the Chief Commissioner could not exercise the power in s 27 at all, because to do so would attract the probationary requirement contrary to the condition in s 136(4)(a). The principle stated by McHugh J is therefore entirely consistent with the construction of s 136(3) as conferring a distinct power of reappointment. Against that background, the natural reading of the stipulations in ss 136(3) and (4) is not that they limit the general power under s 27, but that they govern a specific power under s 136(3) and the general provisions are simply inapplicable.
[39](1991) 172 CLR 1.
[40]Ibid 23; see also Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7 (Gavan Duffy CJ and Dixon J); Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1, 15 [31] (French CJ, Hayne, Kiefel and Bell JJ).
The fact that a power is conferred on the Chief Commissioner in the active voice in sub-s (2) is not a basis for concluding, in the light of these considerations, that no power is conferred upon the Chief Commissioner by the use of the passive voice in sub-s (3).[41] It is true that sub-s (3) could also have been expressed in terms such as ‘the Chief Commissioner may reappoint’, but in either case a discretionary power is conferred.
[41]See Roads Corporation v Dacakis [1995] 2 VR 508, 537 (Batt J).
We therefore agree with the associate judge that s 136(3) confers a power on the Chief Commissioner to reappoint a dismissed officer, and that the power involves the exercise of a discretion.
The question then is whether the associate judge was correct to construe the power of reappointment as requiring that the subject matter of the conviction which was subsequently set aside be disregarded.
Section 136(3) itself provides no support for the view that the Chief Commissioner must disregard the subject matter of the conviction. If anything, it points to the opposite conclusion. In that regard, the power of reappointment may come to be exercised in a range of different circumstances. The police officer may have been pardoned, leaving the conviction in place but absolving the officer of any or further punishment. The conviction may have been set aside and orders made for a retrial, yet to take place. Or, as in this case, the conviction may have been set aside and a verdict of acquittal entered. None of these circumstances involves a finding that the police officer did not engage in the conduct the subject of the charge. At the highest, it may have been determined that so much could not be proved to the criminal standard. In other cases, of which the present is an example, it may not be a question of the standard of proof. The conviction may instead have been undermined by, for example, legal defects in the indictment or in the trial procedure or miscarriages in the deliberations of a jury. A pardon might be granted for any number of reasons, including on compassionate grounds.[42] The breadth of scenarios in which the power of reappointment may come to be exercised tells against a broad exclusion of the kind identified by the associate judge.
[42]Sentencing Act 1991 s 107; see also Criminal Procedure Act 2009 s 327(4).
At the same time, the statutory context supports the view that the Chief Commissioner has a wide discretion. As observed earlier, under s 16 the Chief Commissioner is the chief executive officer of Victoria Police and is responsible for its management and control, being responsible to the Minister for the general conduct, performance and operations of Victoria Police. In that context, it is to be expected that the Chief Commissioner will exercise the powers conferred by the Act to advance the purposes of Victoria Police. In matters of employment, those purposes necessarily require having regard to the character and reputation of those serving as police officers, and of those aspiring to do so. Considerations of that sort go directly to the role of Victoria Police in serving the community and upholding the law so as to promote a safe, secure and orderly society, as provided in s 8.
It may be accepted, as the respondent submitted, that questions of the self-esteem and well-being of police officers, being aspects of police morale, will also bear on the exercise of police powers. As Brennan J said in Public Service Board v Morris,[43] one purpose of police discipline is the maintenance of the self-esteem of police officers. But in context, his Honour’s reference was to the self-esteem of the force, rather than that of an individual who is subject to discipline. Brennan J said:
The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means — the primary and usual means — of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency. It cannot be thought that the Police Regulations intend a police officer to be able to cloak with his silence activities that are prejudicial to the achievement of these purposes. To permit, under a claim of privilege, a subordinate officer to refuse to give an account of his activities whilst on duty when an account is required by his superior officer would subvert the discipline of the police force.
[43](1985) 156 CLR 397, 412.
These observations also confirm that maintenance of public confidence in Victoria Police is a key purpose of the conferral of powers on the Chief Commissioner under pt 7 of the Act, including the power of reappointment. This again suggests that questions of character and reputation may have a significant bearing on the exercise of that power.
The power in s 136(3) falls to be exercised, like any statutory power, by reference to its scope and purpose as revealed by its statutory context.[44] The fact that the power reposes in the Chief Commissioner, who has the functions and responsibilities just identified, points to its purpose being to enable the Chief Commissioner to decide whether the dismissed officer is suitable for reappointment, that issue arising for determination because the conviction that was the premise for dismissal has subsequently been set aside. The fact that the power is conferred in that context indicates that the conviction itself is not to be taken into account. The question is whether it points to any further narrowing of the statutory power, to also exclude from account the subject matter of the conviction.
[44]R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45, 49 (Stephen, Mason, Murphy, Aickin and Wilson JJ); Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 204–5 [19] (Gleeson CJ, Gaudron and Hayne JJ).
In our opinion, it does not.
First, we have already stated why we do not find it helpful in the present context to point to the ‘beneficial’ character of s 136(3).
Next, in our opinion, the decisions in Cavanough and Rimanic, to which the associate judge referred, are of no assistance. In each of those cases, the statute under consideration provided for an automatic consequence upon the entering of a conviction (vacation of public office and consequent loss of salary in Cavanough and cancellation of a licence in Rimanic). In that context, the statute was construed as reversing the relevant consequence upon the setting aside of the conviction. No question of the scope of any administrative discretion arose. To the contrary, the only question was whether, the statute being silent on the point, it was to be taken as ceasing to have its deeming effect when the conviction was set aside.
The observations of the High Court in Cavanough, in particular, must be understood in that context. Rich, Dixon, Evatt and McTiernan JJ said that, upon reversal of a conviction, the person charged is:
entitled to be restored to all things which he may have lost by such erroneous judgment and proceedings, and shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him.[45]
[45](1935) 53 CLR 220, 225 (citation omitted).
It followed that Mr Cavanough could not ever have been deemed by the statute to have vacated his office (upon conviction), and so was entitled to his salary.
In Rimanic, Callaway JA (Winneke P and Vincent JJA agreeing) stated:
I can find no indication that parliament intended to abrogate the common law principle in Cavanough’s case as it bears on cancellation under s 28. ... An innocent person, for that is the status of a person whose conviction is set aside, should not have to rely on the favourable exercise of an administrative discretion, even if it is reviewable by the Victorian Civil and Administrative Tribunal. The legislature … left the common law to operate. …
The common law principle in Cavanough’s case is fundamental to a fair system of criminal justice. A wrong has been done to the person whose conviction is quashed or set aside and that person must be restored, so far as may be, to his or her former position.[46]
[46](2002) 129 A Crim R 356, 361 [13] (citations omitted).
These decisions do not stand for a freestanding principle that a person whose conviction is set aside is entitled to be restored to their former position. They mean that it is to be assumed, in the absence of statutory language to the contrary, that a consequence visited by statute upon a person convicted of an offence ceases to apply if that conviction is set aside. The decisions have no application here, because the Act does not mandate the dismissal of a police officer upon conviction for an offence punishable by imprisonment. Instead, the Chief Commissioner is given a power of dismissal (along with other powers). Further, in any event, the legislature has made it plain that a dismissed police officer does have to ‘rely on the favourable exercise of an administrative discretion’ in order to be reappointed. In that way, the legislature has made it plain that the officer is not ‘entitled to be restored’ to the position he or she was in before the conviction.
The associate judge acknowledged that the facts of the present case differed from those in Cavanough. However, she considered that the principle identified in that case was consistent with a construction of s 136(3) by which the Chief Commissioner was required to disregard the subject matter of the former conviction. We respectfully disagree. The principle, where it applies, calls for the conviction itself to be disregarded because, to use the term employed by Starke J in Cavanough and cited in Rimanic, the conviction was ‘obliterated’ by the order setting it aside.[47] That circumstance says nothing about the basis upon which a statutory power, enlivened upon the setting aside of the conviction, is to be exercised, except that it should (subject to contrary statutory language) be exercised without regard to the conviction itself. The principle in Cavanough has nothing further to say on that subject.
[47]Cavanough (1935) 53 CLR 220, 226; Rimanic (2002) 129 A Crim R 356, 360 [9]–[10].
The next matter identified by the associate judge was s 137. She stated that it was ‘consistent with s 137’ for the Chief Commissioner to disregard the matters which form the subject of charges resulting in a conviction which was later set aside. Accepting that may be so, however, nothing in s 137 points to a restriction on the matters that the Chief Commissioner may choose to take into account in exercising the power of reappointment in s 136(3). Section 137 addresses the matter of double punishment. It makes it clear that the Chief Commissioner may proceed under s 136(1), or div 1, but not both. It says nothing about the power of reappointment, the exercise of which involves deciding whether to ameliorate punishment, not whether to impose it. A refusal to reappoint is not a further punishment. Even if it were, s 137 is about punishment under s 136(1), not s 136(3).
Section 137 therefore does not point to a restriction of the discretion in s 136(3).
Finally, the associate judge referred to the parliamentary explanation for the use of the word ‘may’ in the predecessor provision to s 136(3). We do not take her Honour to have given significant weight to this matter. In light of our above conclusions as to the proper construction of s 136(3) by reference to the statute itself, nothing can turn on this extrinsic material.
Conclusion
In summary, the Chief Commissioner has a broad discretion when exercising the power of reappointment in s 136(3), having regard to the scope and purpose of the power in the context of the Act as a whole, and unfettered by the constraint identified by the associate judge. The Chief Commissioner’s power to reappoint a dismissed police officer under s 136(3) involves the exercise of a discretion which permits regard to be had to the subject matter of the charge or charges upon which any conviction leading to the officer’s dismissal was based.
It follows that Acting Commander Porter did not err in the exercise of the power delegated to him and the appeal must be allowed. In place of the orders of the associate judge, it should be ordered that the proceeding in the Trial Division be dismissed.
We shall hear the parties as to the costs of the appeal and the proceeding in the Trial Division.
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