· 2022-01-20T05:37:06+0000 · 465 posts

Applicant Opposes Refusal of Application to Re-Join Police Service

O'Brien v Commissioner of the Queensland Police [2021] QSC 349 (17 December 2021)

The applicant applied to join the Queensland Police Service. The respondent refused the applicant’s application to re-join the Queensland Police Service. In dispute is whether or not there was a substantial denial of natural justice in the circumstances. The Court, in adjudicating this dispute relied upon the Police Service Administration Act.

Facts:

The applicant was previously investigated for two matters relating to alleged misconduct. The first event involved an overpayment of wages into the applicant’s bank account for the pay period 1 November to 14 November 2003 (“the overpayment”). The second matter involved a marine incident which occurred on 18 April 2004 (“the marine incident”). However, the Discipline Regulations provided that only the prescribed officer, the commissioner or a deputy commissioner, could the sanction of dismissal from the QPS be imposed.

Internal investigations of the Queensland Police Service recommended the applicant be disciplined by way of disciplinary hearing for both matters. However, the applicant resigned due to medical reasons before the disciplinary hearing was constituted. On 10 September 2016, the applicant applied to join the Queensland Police Service as a police recruit. The applicant had previously been a member of the QPS during the period between in or around 1991 and 18 January 2008, when he had retired on medical grounds. The application was twice rejected by delegated decision-makers and, each time, the relevant decision was set aside and remitted to the Commissioner for redetermination. The most recent occasion on which the application was so remitted was 30 April 2021.

On that date, this Court made orders by consent which provided that the new decision maker will be the rank of Assistant Commissioner of [the QPS] and the decision maker will form a preliminary view of the information within 14 days. If, on a preliminary view of the information before the decision maker, the decision maker considers that the applicant may not be suitable to be engaged by the service the decision maker will disclose the information to the applicant and the applicant will have 14 days to make representations to the decision maker about the information. Upon receipt of the representations from the applicant, or the expiry of the 14 day period, a final decision will be made within 14 days.

Assistant Commissioner Charysse Pond APM (“the decision-maker”) rejected the application on the basis that the applicant did not meet the standard of merit required to be engaged as a police recruit. On 14 June 2021, the applicant filed an application for statutory orders of review alleging that the decision was made in breach of the rules of natural justice, that procedures that were required by law to be observed in relation to the making of the decision were not observed and that there was no evidence or other material to justify the making of the decision.

Issues:

I. Whether or not the respondent’s reasons for decision provided the applicant with ample notice of adverse propositions or material the respondent took into account in making their decision.

II. Whether or not there was a substantial denial of natural justice in the circumstances.

III. Whether or not the respondent complied with 5AA.12(1).

Applicable law:

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, cited - held that it is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if ‘the decision-making process, viewed in its entirety, entails procedural fairness’.”

Gurani v Minister for Immigration and Border Protection (2014) 315 ALR 130, cited - where the Full Federal Court applied this principle by reference to whether adverse conclusions ultimately drawn by the decision-maker were “surprising or procedurally unfair”.

Kioa v West [1985] HCA 81; (1985) 159 CLR 550, cited - held that the law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 - provides that procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power.

Re Minister for Immigration and Multicultural Affairs; Ex parte ‘A’ [2001] HCA 77; (2001) 185 ALR 489, cited - provided that a person should ordinarily be afforded the opportunity to provide evidence or material to rebut information or material tendered against that person’s interests.

Police Service Administration Act 1990 (Qld), s 5AA.12 - required the respondent to disclose information to the applicant adverse to the applicant’s prospects of their application being approved.

Police Service (Discipline) Regulations 1990 (Qld) - under which the decision to appoint a person as a police recruit is made.

Analysis:

The decision was concerned with the merit of the applicant as revealed by the application which fell to be considered and determined in 2021. The events and allegations the subject of the disciplinary charges had occurred almost two decades earlier. The deficiencies in the procedure meant that the substantive reasons why the decision-maker considered that the applicant was not suitable to be engaged by the QPS first emerged in the decision rather than in the disclosure required by ss 5AA.12(1) and (2) of the PSA Act.

The applicant was thereby deprived of the reasonable opportunity to respond to matters that were significant to the decision to reject the application. Had the applicant been fairly appraised of those matters, as a matter of reality and not mere speculation, he could have provided a response to the decision-maker that may have influenced the determination of the application.

To ensure procedural fairness the applicant was provided an opportunity to make representations to AC Pond, about representations he wishes to make about the assessment of your suitability to be employed by QPS as police recruit. The passage of time has not diminished the seriousness of the behaviour alleged against you at that time. In coming to the decision, the Court is not making any factual findings about your conduct or the possible outcome of those disciplinary hearings had they taken place. However, the Court is concerned that the fact that these disciplinary hearings had been recommended, following investigations which involved interviews with the applicant, is a matter that is relevant to his suitability to rejoin the police service as a recruit.

Conclusion:

The decision of Assistant Commissioner Charysse Pond as contained in the letter from Assistant Commissioner Charysse Pond to the applicant dated 3 June 2021 is set aside. The applicant's application to join the Queensland Police Service as a police recruit is referred to the Commissioner of Police for further consideration and decision according to law.

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