Stanwix v Police Review Board
[2016] TASSC 59
•28 October 2016
[2016] TASSC 59
COURT: SUPREME COURT OF TASMANIA
CITATION: Stanwix v Police Review Board [2016] TASSC 59
PARTIES: STANWIX, Adam
v
POLICE REVIEW BOARD
FILE NOS: 785/2016
1568/2016
DELIVERED ON: 28 October 2016
DELIVERED AT: Hobart
HEARING DATE: 25 October 2016
JUDGMENT OF: Blow CJ
CATCHWORDS:
Police – Internal administration – Appointment and promotion – Tasmania – Review of promotion decision by Police Review Board – Eligibility to apply for review – Officer who unsuccessfully applied in past.
Police Service Act 2003 (Tas), s 55(1).
Aust Dig Police [1006]
REPRESENTATION:
Counsel:
Applicant: B R McTaggart SC
Respondent: No Appearance
Commissioner of Police M E O'Farrell SC
Solicitors:
Applicant: Wallace Wilkinson & Webster
Respondent: Solicitor-General
Commissioner of Police Solicitor-General
Judgment Number: [2016] TASSC 59
Number of paragraphs: 37
Serial No 59/2016
File Nos 785/2016
1568/2016
ADAM STANWIX v POLICE REVIEW BOARD
REASONS FOR JUDGMENT BLOW CJ
28 October 2016
This case concerns the procedures relating to promotion applications and reviews of promotion decisions under the Police Service Act 2003 ("the Act"). The applicant is a senior sergeant with Tasmania Police who wishes to be promoted to the rank of inspector. After another officer was promoted to that rank, the applicant applied to the respondent, the Police Review Board, for a review of that decision. The Board made a determination on 22 February 2016 to the effect that he was not entitled to apply for such a review. He has applied for the review of the Board's determination pursuant to the Judicial Review Act 2000. To avoid any argument as to whether the Court has jurisdiction under that Act, he has also applied for an order quashing the Board's determination pursuant to r 627(2)(a) of the Supreme Court Rules 2000. That is to say, he has sought relief in the nature of certiorari.
The Board filed notices indicating that it would submit to any orders made by the Court in these proceedings. The promoted officer also elected to take no part in the proceedings, and to submit to any orders that were made. The Commissioner of Police opposed the applicant's two applications, and was represented at the hearing before me by the Solicitor-General for Tasmania, Mr O'Farrell SC.
Background
In July 2009 the applicant successfully completed a course called the Inspectors Qualifying Course.
On 9 October 2014 two vacancies for positions at the rank of inspector were advertised in the Police Gazette. The notice advertising the positions included the following advice:
"A member may apply for any of the below listed vacancies provided they either hold the substantive rank of the gazetted vacancy, or are qualified for promotion to that rank. … Unsuccessful applicants will be notified by email."
On 28 October 2014 the Commissioner of Police issued a notice headed "Key Message" which outlined the process that would thereafter be followed in relation to applications for promotion to the rank of inspector. It included the following:
"Selection interviews for promotion to the rank will remain valid for a period of six (6) months.
Applicants deemed suitable for promotion would be considered for any future promotion to the rank of Inspector based on an order of merit determined by the Promotion Selection Committee.
Applicants who are deemed 'not yet suitable' following an interview will not be considered for promotion to the rank of Inspector for the 6 month period.
This would allow further selections to occur without the need to reconvene a Promotion Selection Committee on each occasion.
At the conclusion of the nominated 6 month period a member, if they have not been promoted will be subject to the application process.
Gazetting of opportunities for promotion to rank, not position, would occur as and when required.
Members who have not applied for promotion and therefore not been subject to interview, within the preceding 6 months of a gazetted opportunity for promotion, may submit an application in order to proceed to interview."
During November 2014, the applicant submitted an application for the two gazetted vacant positions at the rank of inspector. He was interviewed by a Promotion Selection Committee on 4 December 2014. At a meeting on 4 January 2015, he was advised by two Assistant Commissioners that he was considered "not yet suitable" for promotion.
On 4 June 2015 the Commissioner published a notice about promotions to the rank of inspector on page 4 of that day's issue of the Police Gazette. It read as follows:
"q Gazette Notice 55/2015
Future Inspector Promotions
It is envisaged that there will be opportunities for promotion to the rank of Inspector within the next financial year.
Eligible members, as of this date, who are desirous of promotion to the rank of Inspector are required to submit an Expression of Interest, via email to [email protected], by Friday 19 June 2015, indicating their intention to undertake the process.
Interviews will be undertaken between Monday 3 and Thursday 6 August 2015.
Members who express interest will be contacted by Employee Services at a future date in relation to submission of their promotion portfolio.
Those members who were deemed suitable for promotion from interviews conducted in December 2014 may elect to either:
1 submit a revised portfolio only, or
2 submit a revised portfolio and undertake an interview.
The Inspector's Promotion Process Instructions are available on the Human Resources intranet site under Employee Services
Dated 4th day of June 2015|D L Hine, Commissioner of Police."
The applicant did not see that notice. He was in the habit of looking at the vacancies advertised in the Police Gazette. On the day in question, various vacancies were advertised on page 2, but none of them were for positions at the rank of inspector. The applicant may have looked at the list on page 2, but he did not see the notice about "Future Inspector Promotions" on page 4. Nobody brought the notice to his attention. As a result, he did not submit an expression of interest and was not thereafter considered for promotion.
On 27 August 2015 the Commissioner published a notice in the Police Gazette advising that he had recommended to the Minister that Senior Sergeant Robert Blackwood be promoted to the rank of inspector. I infer that this took the applicant by surprise.
The next day, the applicant applied to the Board for a review of the decision to promote Mr Blackwood. Under s 55(2) of the Act, such an application may be made on the ground that "the applicant is of superior merit to the person to be promoted" and/or the ground that "there was an irregularity in the procedures relating to the process that affected the decision". The applicant relied on both grounds.
On 22 February 2016 the Board made the determination that the applicant now seeks to have reviewed and quashed.
The right to apply for the review of a promotion decision is conferred by s 55(1) of the Act. That subsection reads as follows:
"(1) A non-commissioned police officer, other than a special constable, may apply to the Police Review Board for a review of a decision relating to a promotion to a rank of or below the rank of inspector if the police officer applied for that rank and is qualified for promotion to that rank."
The Board held that, in the circumstances, the applicant was not entitled to apply for a review under s 55. In its decision, it referred to the following facts:
· Following his interview in December 2014 by the Promotion Selection Committee, the applicant was not recommended for appointment to the rank of inspector.
· The notice in the Gazette on 4 June 2015 said that, "Eligible members … who are desirous of promotion to the rank of Inspector are required to submit an Expression of Interest … indicating their intention to undertake the process."
· The applicant did not submit an expression of interest or any application in response to that notice.
The applicant has never formally withdrawn the application that he made for promotion to the rank of inspector on 4 November 2014. He contends that that application is still pending. He contends that, when he made his application to the Board, he was entitled to do so under s 55(1) because he had "applied for" the rank of inspector and was "qualified for promotion to that rank".
Legislative provisions – the promotion system
By virtue of a definition in s 3 of the Act, a sergeant is a "non-commissioned police officer".
Provisions as to the promotion of non-commissioned police officers are made in s 18 of the Act, the relevant subsections of which read as follows:
"(1) A non-commissioned police officer who is qualified for promotion, by notice in writing to the Commissioner, may apply to be promoted.
(2) A non-commissioned police officer is qualified for promotion if the police officer has successfully completed, or is accredited with having successfully completed, the required examinations and other assessments as the Commissioner determines.
(3) …
(4) The Commissioner may recommend to the Minister the promotion to the rank of inspector of a non-commissioned police officer who is qualified for promotion to that rank.
(5) In determining whether to promote or recommend the promotion of a police officer, the Commissioner may take into account the conduct of the police officer.
(6) A non-commissioned police officer, by notice in writing to the Commissioner, may withdraw an application for promotion."
When he applied for promotion to the rank of inspector, the applicant was "qualified for promotion" for the purposes of s 18(1).
Under s 11(3) of the Act, inspectors are appointed by the Governor.
Section 17 of the Act provides for the establishment of Promotion Selection Committees. That section reads as follows:
"(1) The Commissioner may establish Promotion Selection Committees to make recommendations relating to the promotion or otherwise of police officers.
(2) A Promotion Selection Committee is to consist of at least 3 persons appointed by the Commissioner."
The considerations relevant to a promotion decision are stated in s 21 of the Act, which reads as follows:
"(1) The promotion of a police officer is to be on merit.
(2) Merit is the capacity of a person to perform the required duties having regard to —
(a) the knowledge, skills, qualifications and experience of the person; and
(b) the person's potential for further development."
Once the Commissioner decides to promote a police officer, s 19 of the Act requires him "to publish a notice of that intention in the Police Gazette".
Once such a notice is published, the review provisions in s 55 can be invoked. Section 55(1), which I have set out above, permits an application to be made to the Board by an officer if he or she "applied for that rank and is qualified for promotion to that rank". As I have said, s 55(2) permits such an application to be made only on the grounds of superior merit and/or irregularity. Section 55(3) requires such an application to be made in writing, stating the grounds on which it is made, and to be lodged with the Board within 14 days after publication of the s 19 notice.
If no application is made under s 55, then, under s 20(a), the promotion takes effect 15 days after publication of the s 19 notice. If there is an application under s 55, there are other provisions in s 20 as to when the promotion takes effect, if it takes effect at all.
After conducting a review relating to a promotion to the rank of inspector, there are three different courses that the Board may take. Under s 59(1)(a) of the Act, it may "confirm the promotion". Under s 59(1)(b), it may "direct the Commissioner to recommend to the Minister that the applicant be promoted to the rank of inspector". Under s 59(4), if it determines that there was an irregularity in the procedures relating to the process that affected the decision, it must refer the matter to the Commissioner for reconsideration.
Legislative provisions – powers of the Commissioner
Questions arise in this case as to the extent of the Commissioner's powers to give directions and instructions, and establish procedures, relating to the system of promotions. The responsibilities and powers of the Commissioner are dealt with in s 7 of the Act, which reads as follows:
"(1) The Commissioner, under the direction of the Minister, is responsible for the efficient, effective and economic management and superintendence of the Police Service.
(2) Matters for which the Commissioner is responsible include, but are not limited to, the following:
(a) determination of the organisational structure of the Police Service;
(b) determination of the number, type and location of police stations and other buildings and structures used for the purposes of the Police Service;
(c) determination and allocation of duties within the Police Service;
(d) performance evaluation;
(e) discipline within the Police Service;
(f) training, education and development programs to ensure efficient and effective performance of duties;
(g) the establishment of internal grievance-resolution procedures.
(3) The Commissioner may —
(a) issue orders, directions, procedures and instructions for the efficient, effective and economic management and superintendence of the Police Service; and
(b) do anything else necessary or convenient for the efficient, effective and economic management and superintendence of the Police Service."
The Commissioner contends that s 7(3) gave him the power to establish the procedures referred to in the "Key Message" of 28 October 2014 and the notice of 4 June 2015.
Eligibility to apply for a review under s 55
The provisions of the Act relating to promotions are focused on the concept of promoting an individual to a rank, and not on promoting an individual to fill a position whose holder should have a particular rank. Large organisations in the public sector generally do not work like that. Individuals are generally not promoted to a particular rank or level unless and until they are appointed to particular positions that are appropriate for individuals of that rank or at that level.
After an amendment to the Police Regulation Act 1898 in 1995, s 49G(1) of that Act read as follows:
"(1) A police officer who applies for a position of a prescribed rank may appeal to the Board against the intended appointment of another police officer to that position if the appointment would be a promotion for that other officer."
The board referred to in that subsection was the Police Promotions Appeal Board. That subsection made it quite clear that the right to challenge a promotion could be exercised only by an individual who had applied for a particular position – "a position of a prescribed rank". That provision remained in force until the repeal of the 1898 Act took effect on 1 January 2004.
The words, "if the police officer applied for that rank", in s 55(1), according to their ordinary meaning, refer only to an application for promotion to a rank, and not to an application for appointment to a position. The fact that Parliament did not adopt the repealed Act's reference to "a position of a prescribed rank" weighs in favour of giving the words of s 55(1) their ordinary meaning, and not treating them as relating to position-based applications.
An application of any description can be either successful or unsuccessful. Until it is either successful or unsuccessful, it is pending. The words "if the police officer applied for that rank" in s 55(1) should in my view be interpreted as referring only to a police officer who had made an application for promotion to the rank in question that was pending at the time when another officer was promoted to that rank.
Counsel for the applicant submitted that once an application for a promotion to a particular rank was made under s 18(1), it remained pending until the promotion took place unless it was withdrawn by a notice in writing pursuant to s 18(6). I reject that submission. It is true that it would be a relatively simple task to maintain a list of all promotion applications that had been neither granted nor withdrawn, and for all individuals on that list to be contacted whenever a promotion to the rank applied for was being considered. However the submission ignores the fact that applications are sometimes unsuccessful. And it would be absurd if a police officer who was approaching his or her level of incompetence, having once applied for promotion to that level, had to be notified before every subsequent promotion to that level for the rest of his or her career unless a s 18(6) withdrawal occurred.
The applicant's promotion application of November 2014 was an application for a promotion to fill either of two advertised vacancies at the rank of inspector. It is obvious that that application was unsuccessful. He was informed on 4 January 2015 that he was considered "not yet suitable" for promotion. Although the notice of 9 October 2014 said that unsuccessful applicants would be notified by email, I do not have any evidence as to whether or not the applicant was ever notified by email that his application had been unsuccessful. However, whether or not such an email was sent, it must have been clear to him long before the publication of the Gazette notice of 4 June 2015 that his application had been unsuccessful.
It must follow that, in relation to the decision to promote Mr Blackwood to the rank of inspector, it cannot be said that, for the purposes of s 55(1), the applicant was a police officer who "applied for that rank". He did not have an application for promotion to the rank of inspector pending at any relevant time. He had applied for that rank in the past and been unsuccessful, but s 55(1) must not be interpreted as applying in that situation.
In my view s 7(3) gave the Commissioner the power to establish procedures relating to the promotion process, and to issue directions and instructions in relation to that process, to the extent that such procedures, directions and instructions were consistent with the other provisions of the Act. The Act contains provisions as to promotion applications in s 18(1), promotion on merit in s 21, recommendations by the Promotion Selection Committees in s 17(1), and recommendations by the Commissioner to the Minister for promotions to the rank of inspector in s 18(4). Otherwise the Act is otherwise silent as to the procedures by which successful applicants for promotion are to be chosen. It must follow that such procedures can be put in place by the Commissioner in the exercise of the powers conferred by s 7(3)(a).
The Commissioner's "Key Message" of 28 October 2014 drew a distinction between applicants who were deemed suitable for promotion and those who were deemed "not yet suitable". In substance, that notice established a procedure whereby applications by individuals deemed suitable for promotion would be treated as pending for a period of six months, during which those individuals would not need to re-apply, but whereby those deemed "not yet suitable" would have to re-apply after the six-month period expired. That is to say, the application by an individual deemed "not yet suitable" was treated as rejected. Each such individual retained a statutory right to apply again at any time under s 18(1). Any such application would have to be determined on its merits, regardless of any procedure put in place by the Commissioner, but otherwise the promotions procedure was governed by the "Key Message". The applicant did not re-apply under s 18(1). Since he was deemed "not yet suitable", his application of November 2014, once it was unsuccessful, became a thing of the past.
Conclusion
For the reasons stated above, the Board was correct to hold that the applicant was not eligible to apply for the review of the decision relating to the promotion of Mr Blackwood. His application under the Judicial Review Act must therefore be dismissed. In relation to his application for an order under r 627(2)(a), Holt AsJ on 2 August 2016 made a general order requiring the Board to show cause why its decision should not be quashed. That order must be discharged.
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