William Johnson v Assistant Commissioner Maurice Carless
[2022] QSC 146
•13 July 2022
SUPREME COURT OF QUEENSLAND
CITATION:
William Johnson v Assistant Commissioner Maurice Carless & Anor [2022] QSC 146
PARTIES:
WILLIAM JOHNSON
(applicant)
v
ASSISTANT COMMISSIONER MAURICE CARLESS(first respondent)
AND
COMMISSIONER OF THE QUEENSLAND POLICE SERVICE
(second respondent)FILE NO/S:
BS 7674 of 2021
DIVISION:
Trial Division
PROCEEDING:
Hearing
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
13 July 2022
DELIVERED AT:
Brisbane
HEARING DATE:
2 June 2022
JUDGE:
Callaghan J
ORDERS:
1. The disciplinary proceeding purportedly commenced by the disciplinary hearing notice being issued by the first respondent on 22 April 2021 is invalid.
2. The respondents are to pay the applicant’s costs.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where a delegate of the second respondent referred a complaint against the applicant to a prescribed officer – where the rank of the prescribed officer was specified by the second respondent’s delegate as chief superintendent at the Office of State Discipline – where a disciplinary proceeding notice was instead issued by the first respondent – whether the first respondent had jurisdiction to commence disciplinary proceedings against the applicant – whether “a prescribed officer” under s 7.11(1) of the Police Service Administration Act 1990 (Qld) must be the same as “the prescribed officer” under s 7.11(2) of that Act
Police Service Administration Act 1990 (Qld) ss 2.2, 7.10, 7.11, 7.35, 7.43
Judicial Review Act 1991 (Qld) ss 20(2)(c), 20(2)(d), 21(2)(c), 21(2)(d)COUNSEL:
M Black with J Liddle for the applicant
M R Wilkinson for the respondentsSOLICITORS:
Gnech & Associates for the applicant
QPS Legal Unit for the respondents
The applicant is a Sergeant of the Queensland Police Service. It is alleged that on 9 October 2019 he used unnecessary force against civilians. As a result, he faces disciplinary proceedings.
Disciplinary proceedings against police officers are regulated by the provisions of the Police Service Administration Act 1990 (Qld) (the Act). The process begins when a complaint is received by the Commissioner.[1] The steps which might then in fact lead to commencement of disciplinary proceedings are prescribed in ss 7.10 and 7.11 of the Act, which read:
[1]Police Service Administration Act 1990 (Qld) s 7.10(1)(a) (Act).
“7.10 Referral of complaint to prescribed officer
(1) This section applies if—
(a) the complaint mentioned in section 7.2 has been received by the commissioner; and
(b) the commissioner has considered under section 7.9 whether to impose a professional development strategy.
(2) The commissioner must decide whether to refer the complaint to a prescribed officer, having regard to the following matters—
(a) any professional development strategy, or other management action, that has been implemented in relation to the subject officer;
(b) whether implementation of any other professional development strategy would be sufficient to achieve the purposes mentioned in section 7.1(b);
(c) the subject officer’s disciplinary history and service history;
(d) the seriousness of the conduct to which the complaint relates;
(e) whether it is necessary to take disciplinary action against the subject officer to achieve the purposes mentioned in section 7.1(b).
7.11 Requirements for starting disciplinary proceeding
(1) This section applies if the commissioner has, under section 7.10, referred the complaint to a prescribed officer.
(2) The prescribed officer may start a disciplinary proceeding against the subject officer if the prescribed officer reasonably believes there is a ground for disciplinary action against the subject officer.”
For the purposes of these sections, the term “prescribed officer” is defined in s 7.3 of the Act as “a police officer mentioned in section 2.2(2)(a),(b) or (c) who holds a rank above the rank of the subject officer”.
The “ranks” are catalogued in s 2.2 of the Act, which reads:
“2.2 Membership of service
(1) The Queensland Police Service consists of police officers, police recruits and staff members.
(2) Police officers are—
(a) the commissioner of the police service;
(b) the persons holding appointment as an executive police officer;
(c) the persons holding appointment as a commissioned police officer;
(d) the persons holding appointment as a noncommissioned police officer;
(e) the persons holding appointment as a constable.”
After the Commissioner received a complaint about the applicant’s conduct, she was required to make the decision contemplated in s 7.10(2) of the Act. She delegated that task to acting Detective Superintendent David Nixon (the Commissioner’s delegate).[2] He “determined” that the matter “should be referred for the consideration of a prescribed officer of the rank of chief superintendent at the office of State discipline.”[3]
[2]Ibid s 4.10(1).
[3]Affidavit of M C O’Brien (filed 15 September 2021), Exhibit MOB-01 (emphasis in original).
The document containing this “determination” records that regard was had to the matters itemised in s 7.10(2)(a)-(e) of the Act.
Important consequences flowed from the determination. Section 7.35(2) of the Act dictates that the range of sanctions ultimately available at the conclusion of disciplinary proceedings is circumscribed by the rank of the “prescribed officer” who might be imposing them. If, for example, the “prescribed officer” was the Commissioner herself, then any of the sanctions contemplated in s 7.35 of the Act might be imposed. At the other end of the scale, if the “prescribed officer” is a chief superintendent (that is, one of the “commissioned officers” for the purposes of s 7.35(2)(c) of the Act), the more severe sanctions – such as suspension – are not available.[4]
[4]There is a complication caused by s 7.43 of the Act. Under s 7.43(5), officers who perform duties as a chief superintendent within the “central unit” – that is, for the purposes of this section, the Office of State Discipline – have the same powers to impose disciplinary sanctions as an assistant commissioner. Similarly, under s 7.43(4), an assistant commissioner in the “central unit” has the same powers to impose disciplinary sanctions as a deputy commissioner. Therefore, for current purposes, there is a corresponding elevation of the disciplinary sanctions that may be imposed by the “prescribed officer”.
The applicant no doubt contemplated, when the “determination” was made to refer his matter for the consideration of a chief superintendent, that he would be in the happy position where, even if his conduct was established, the range of sanctions that he might face would be confined.
In the event, however, his case was not considered by someone whose options were so constrained. On 22 April 2021, it was the first respondent, Assistant Commissioner Carless,[5] who issued a “disciplinary proceeding notice” against Sergeant Johnson.
[5]See footnote 4 above. A deputy commissioner may impose any disciplinary sanction. An assistant commissioner has, for example, the power to demote. A commissioned officer has no such power.
The explanation for the way in which this might have happened was provided in an affidavit from an officer who worked in the “Office of State Discipline”. It was said that:[6]
“5.I can state from my experience at the Office of State Discipline that the general process for any “Prescribed Officer Referral – Consideration” matter, is that the initial referral material is forwarded to the Chief Superintendent and the Assistant Commissioner and it is then tabled at the following Senior Management Group (“SMG”) meeting, which occurs every Tuesday.
6.At the meeting the referral is discussed, and a decision made about which Prescribed Officer will take carriage of it. Referrals are generally worded for consideration of a “Prescribed Officer at the Office of State Discipline”, and it is at the SMG meeting where the relevant considerations are discussed and considered, and a decision is made on the Prescribed Officer who will consider the referral and whether to commence a disciplinary proceeding.
7.Whether the Assistant Commissioner, the Chief Superintendent or the Inspector of the Office of State Discipline considers the referral can be dependent upon several considerations, including, but not limited to, the seriousness (or not) of the alleged misconduct, the number of active referrals that a Prescribed Officer currently has before them and any possible conflicts of interest.”
[6]Affidavit of C Ferguson (filed 11 January 2022) at [5] – [7].
It can be inferred that, notwithstanding the Commissioner’s delegate’s stipulation, some such process occurred and as a result the matter was directed to the desk of Assistant Commissioner Carless.
The applicant complains that Assistant Commissioner Carless has neither authority nor jurisdiction to commence or continue a disciplinary proceeding. Pursuant to ss 20(2)(c)-(d) and 21(2)(c)-(d) of the Judicial Review Act 1991 (Qld), he seeks orders which make declarations to that effect.[7]
[7]Originating Application (filed 7 July 2021).
The application is supported by arguments that:
1. The Commissioner’s delegate determined that the matter should be referred for the consideration of a prescribed officer, and stipulated the rank which should be held by that officer;
2. Section 7.10 of the Act conferred a discretion to do just that; and
3. Having specified that a chief superintendent was “a” prescribed officer for the purposes of s 7.10(2), and therefore also for the purposes of s 7.11(1), it was necessary for a chief superintendent to be “the” prescribed officer for the purposes of s 7.11(2) of the Act.
This construct is established, so it is said, from a plain reading of the text in which those sections are written as well as from consideration of the wider content and purpose of the statute.
The respondents reject this proposition and maintain that there is no requirement for such correlation between ss 7.10, 7.11(1) and 7.11(2) of the Act. It is argued that s 7.10 of the Act is an administrative step and does not require the Commissioner to identify the “prescribed officer” to whom the matter is to be referred. The section requires only that regard be had to the matters set out in s 7.10(2)(a)-(e) of the Act, and that a determination be made as to whether the complaint is to be referred. In the circumstances, the nomination of a specific rank was “verbiage” and did not change the legal characterisation of the determination. Once the decision to in fact refer was made, s 7.11(2) of the Act was said to operate independently from the related provisions. The concept of “the prescribed officer” in that section could therefore be divorced from the concept of “a prescribed officer” as described in s 7.11(1) of the Act, and assume a completely independent identity.
From this reasoning it would follow that there was no need for the officer stipulated for the purposes of s 7.11(1) to be of the same rank as the prescribed officer contemplated in s 7.11(2) of the Act.
I mentioned in argument that some support for the respondent’s position might be found in the Explanatory Notes, which on one reading suggest that the effect of s 7.10 of the Act ought to be confined to the decision as to whether a complaint should be referred. It can also be observed that the Notes, when explaining s 7.11(2) of the Act, make reference to “a prescribed officer”.[8] If the section itself read that way, then the applicant’s argument would not be as strong.
[8]Ibid (emphasis added).
The fact is, however, that it reads as it does and it is difficult to imply into the section a caesura of the kind that would allow the “the prescribed officer” mentioned in s 7.11(2) of the Act to be of a rank different from that of the officer to whom reference is made in words which are contiguous save only for the bracketed subsection and a definite article. Unless there is a clear indication from the text that it is required, it is not usual, when reading a statute, to impute such an abrupt change in the meaning of a term.
There is substance also in the applicant’s point that s 7.10 of the Act should be read in a way that requires the Commissioner to engage with more than the question of whether disciplinary action should be instituted, and to turn her mind[9] to the rank of the “prescribed officer” to which the matter might be referred. There is, as the applicant points out, no other part of the Act which requires the Commissioner’s involvement in the process. Having regard to the nature of her obligations and the object of the Act itself, it is reasonable to anticipate that the Commissioner should be making some sort of judgment call – even at a “triage” stage – about the ambit of the sanction that might be appropriate in the long run. To do otherwise is to run the risk that, as apparently might happen now, the decision as to the rank of the “prescribed officer” is dictated by something like the “number of active referrals that a Prescribed Officer currently has before them”.[10] It might be thought that such an important decision should not default to the opinion of the “SMG”[11] about the level of resources available to deal with complaints. Having regard to the legislative scheme, it is appropriate for the Commissioner (or her delegate) to retain oversight of this process, which should be informed by a considered assessment as to the potential sanction that might be necessary.
[9]Or have her delegates turn their minds.
[10]Affidavit of C Ferguson (filed 11 January 2022) at [7].
[11]See above at [10].
Some of the matters identified in s 7.10(2) of the Act are undoubtedly applicable to the question of whether action should be taken. However, they may also inform the likely need for a sanction of a particular kind. It makes sense to regard that process as an integrated one that is calculated to guard against inappropriate allocations.
There is an unattractive aspect to the result, because the logic which compels this interpretation means that the “prescribed officer” for the purposes of the applicant’s referral will not have available to them sanctions which, it might reasonably be thought, would clearly be warranted if the misconduct was established to the extent that is alleged. I am not, however, being asked to review the reasonableness of the decision to stipulate that the complaint be referred to a chief superintendent. It remains that, having been referred to an officer of that rank, it is an officer of that rank who becomes “the” prescribed officer for the purposes of s 7.11 of the Act. The applicant is therefore entitled to the relief that he seeks.p
I therefore declare that the disciplinary proceeding purportedly commenced by the disciplinary hearing notice being issued by the first respondent on 22 April 2021 is invalid.
The respondents are to pay the applicant’s costs.
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