Green v. Commissioner of the Queensland Police Service [2006] QSC 323 (27 October 2006)

Queensland Police Service Solicitor for the respondent

[1] This is an application filed on 5 April 2005 under s. 20 of the Judicial Review Act 1991 for review of the decision of the respondent regarding the re-assessment of applications for vacancies in the Queensland Police Service, no. 409/03 Senior Sergeant Officer-in-Charge, Tactical Crime Squad (Boondall, Oxley, Redcliffe, and Maryborough). The applicant, a police officer, seeks an order quashing or setting aside the respondent's decision and referring the issue whether the applicant should be promoted to the position of Senior Sergeant (Officer in Charge) Oxley Tactical Crime Squad back to the respondent, and other ancillary orders. The grounds of the application are:

1. That a breach of the rules of natural justice occurred in relation to the making of the decision in that published policies and procedures of the Respondent relating to steps to be taken in making such decisions were not complied with,

2. That the procedures that were required by law to be observed in connection with the making of the decision were not observed,

3. That the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made,

4. That the decision was otherwise contrary to law.

[2] The applicant claims to be aggrieved by the decision because it has denied him promotion within the Queensland Police Service. The applicant holds the rank of sergeant and he is stationed at the South Brisbane District Tactical Crime Squad. On 23 September 2003 the vacancies the subject of this application were notified in the Queensland Police Gazette. It was a 'generic' notice relating to the four positions to which I have referred. The closing date for applications was

13 October 2003. On that day the applicant submitted an application for all four positions. The selection panel placed him as the applicant first preferred and recommended that he and three other applicants be appointed, as recorded in an advertised position selection report dated 11 February 2004. The applicant was permitted to choose where he would take up his appointment. He chose Oxley. His appointment was notified, subject to review, in the Queensland Police Gazette on 27 February 2004.

[3] By an e-mail dated 15 March 2004 the applicant was notified that a number of unsuccessful candidates had sought to have the decision to appoint the applicant and the other appointees reviewed. They had applied to a Commissioner for Police Service Reviews, as they were entitled to do, under s. 9.3(1) of the Police Service Administration Act 1990, the Act providing for the Queensland Police Service and its administration. Section 9.5(1) requires the Commissioner for Police Service Reviews, upon concluding the review, to make such recommendations as he or she considers appropriate to the matter under review to the respondent. The respondent, upon consideration of the matter reviewed and having regard to the recommendations made, is then required to take such action as appears to be just and fair: s. 9.5(2).

[4] The result of the review procedure was that by a decision dated 11 October 2004 the promotions to the vacancies 409/03 were set aside and a new selection panel was convened to assess the applications afresh. Superintendent Tonya Carew was appointed to convene a panel to reassess the vacancies.

[5] On 17 May 2004 the applicant had taken up the position of Acting Senior Sergeant, Officer-in-Charge of the Tactical Crime Squad at Oxley.

[6] On 23 November 2004 Superintendent Carew received a telephone call from Sergeant Richard Symes, shift supervisor, Camp Hill, one of the applicants for review. Sergeant Symes claimed to be aggrieved by his not having had the opportunity to relieve in the position as the applicant had. Superintendent Carew considered ss. 10.1.4.1 and 10.1.4.2 of the Human Resource Management Manual (a series of directions given by the respondent, to which I shall refer later), and, having done so, sent an e-mail dated 2 December 2004 to all candidates which included the following:

I have received a complaint about the updating of the resumes. It appears that some people have been actually relieving in the position of OIC TCS since the time of gazettal, and others have not been given that opportunity. It was felt that people who have not had the opportunity to relieve as OIC TCS will be disadvantaged as they have not had the same work experience which pertains specifically to the job description.

I considered that complaint and felt it was a fair comment and agreed that everyone should at least be on the same playing field in terms of updating the resumes. I took this matter up with Mr Jim Hardie the HR Director, and it has been decided that we will allow applicants to update their resumes up to February 2004 when the position was gazetted. Anything after that for everyone will not be considered.

I understand this will be frustrating for most of you as you have spent considerable time updating your resumes, however at the end of the day the process has to be fair and equitable for everyone concerned.

Please re-write your resumes up to February 2004 and do not include anything after this period. You have until Wednesday the 8th of December to get them to me.

[7] Sections 10.1.4.1 and 10.1.4.2 of the Manual concerned relieving periods of twelve weeks or less and relieving periods between twelve weeks and twelve months respectively. Superintendent Carew acted on the premisses that the applicant had been in the position at Oxley for over nine months and that the vacancy he occupied had not been advertised seeking expressions of interest 'as widely as practicable' as required by s. 10.1.4.2. She then concluded that Sergeant Symes's complaint had merit, that he had not been afforded an opportunity to relieve 'as required by the HRM Manual'. It seems clear that the first premiss was wrong since the applicant had held the acting position for only abut six months. It may be that the second one was as well, because the applicant swore that he recalled that 'in or about January to March 2004' he received 'an official QPS e-mail asking for expressions of interest in relieving in the TCS position' - an e-mail, he swore, that was sent to all police officers in the Metropolitan South Region. It is not possible for me to resolve that issue of fact because no deponents were called for cross-examination, and I was not asked to do so. In any event, in my view the basis on which Superintendent Carew acted is irrelevant to the resolution of the issues on this application.

[8] There was another unresolved issue of fact on the affidavits before me. The applicant swore that on or about 3 December 2004 he spoke on the telephone to

Mr James Hardie, Director of the Human Resources Division of the Queensland Police Service in which the applicant complained that it was unfair that he had been 'held back' because he had been performing the duty. The applicant swears that

Mr Hardie advised him it would make no difference to the 'end result'. Mr Hardie continued in paragraphs 30 and 31 of his affidavit:

30. ... However I do recall that I did have a conversation with Detective Sergeant Green in which I said words to the effect that while the period of his relieving since February 2004 would not be reflected in his application, the experience and knowledge he had gained during the period of his relieving would be reflected, as a matter of natural consequence, in the way he responded to questions at interview and consequently the benefit to him of having performed the relieving duties would still be realised.

31. I formed the view that nothing the Service could have done would have removed that potential benefit for Detective Sergeant Green. I did not believe therefore that the fact that his relieving since February 2004 would not be reflected in his updated application was a necessary disadvantage to him.

[9] The applicant was interviewed by the new panel on 25 January 2005. The applications for the vacancies were then reassessed and the applicant was unsuccessful this time: two of the successful applicants had been successful in the first instance and two had not. Sergeant Symes was one of the latter two. The new appointments were notified in the Queensland Police Gazette of 11 March 2005. The appointees were served with notice of this application but have elected not to appear.

[10] On 10 March 2005 the applicant had lodged a grievance report to the District Officer, Oxley District, regarding Superintendent Carew's actions as panel convenor. Among the grounds was the failure to allow him the opportunity 'to update material in [his] application that would have been considered favourably in the selection processes.

[11] The applicant's grounds for this application, as they were refined in the outline of submissions made on his behalf, were:

(a) the Applicant was denied procedural fairness in connection with his application in that s. 16.6.10.1 of the Human Resource Management Manual, a policy adopted and published by the Respondent, was not complied with, and the Applicant was not given an opportunity to make representations as to why the policy should be followed;

(b) the decision involved an error of law in that the Applicant's experience and performance after February 2004 was not taken into account in breach of s. 5.3(2), (5) and (6) of the Police Service Administration Act 1990 ("the PSAA");

(c) the decision involved an error of law in that Superintendent Carew and Mr Hardie decided not to comply with s. 16.6.10, of the Human Resource Management Manual when they had no legal authority to so decide;

(d) the Respondent failed to take into account a relevant consideration, namely the Applicant's experience and performance as a police officer since February 2004.

[12] The objects of the Police Service Administration Act are: to provide for (a) the maintenance of the Queensland Police Service, (b) the membership of the service, and (c) the development and administration of the service: s 1.3. Part 4 of the Act (ss. 4.1-4.12) deals with the office occupied by the respondent. Section 4.8(1) provides that the Commissioner of the Queensland Police Service is responsible for the efficient and proper administration, management, and functioning of the police service in accordance with law. Section 4.8(2) elaborates that responsibility providing that, without limiting the extent of the prescribed responsibility, it includes responsibility for a number of specified matters including '(j) promotion or demotion of officers and staff members', and '(p) internal redeployment of officers.' Section 4.8(3) provides that the Commissioner is authorized to do, or cause to be done, all such lawful acts and things as the Commissioner considers to be necessary or convenient for the efficient and proper discharge of the prescribed responsibility. Section 4.9 provides for Commissioner's directions. So far as it is relevant it is as follows:

Commissioner's directions

4.9(1) In discharging the prescribed responsibility, the commissioner may give, and cause to be issued, to officers, staff members or police recruits, such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service.

(2) A direction of the commissioner is of no effect to the extent that it is inconsistent with this Act.

(3) Subject to subsection (2), every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction.

[13] Section 4.10(1) provides that the Commissioner may delegate powers of the Commissioner under the Act to a police officer or staff member.

[14] Part 5 of the Act (ss. 5.1-5.17) deals with appointment of personnel. Section 5.2 deals with transfers and appointments. So far as it is relevant it is as follows:

Appointment to be on merit on impartial procedures

5.2.(1) In this section -

"transfer" of a police officer to a position means the appointment of a police officer to a position in which the police officer will hold the same rank and be entitled to at least the same level of salary.

(2) A decision to appoint a person as a police recruit or to a police officer position must be made by fair and equitable procedures that -

(a) include inviting applications and selection on the basis of the merit of applicants; and

(b) prevent unjust discrimination, whether in favour of or against a person.

(3) However, if a decision is made to transfer a police officer on a basis prescribed by regulation, the decision need not involve the procedures mentioned in subsection (2)(a).

...

(5) For the purposes of this section merit of an officer comprises -

(a) the integrity, diligence and good conduct of the officer; and

(b) the potential of the officer to discharge the duties of the position in question; and

(c) the industry shown by the officer in performance of the duties of office in the course of the officer's career; and

(d) the physical and mental fitness of the officer to perform the duties of the position in question.

(6) For the purpose of determining the potential of an officer to discharge the duties of a position the following factors must be taken into account -

(a) the performance of duties of office in the course of the officer's career;

(b) the range of practical experience of the officer in the service or outside the service;

(c) the ability, aptitude, skill, knowledge and experience determined by the commissioner to be necessary for the proper performance of the duties of the position in question;

(d) any relevant academic, professional or trade qualifications of the officer.

The decision in this case was of course not a decision to transfer a police officer but was a decision to appoint a person to a police officer position.

[15] Part 9 (ss. 9.1-9.6) of the Act deals with reviews of decisions. Section 9.3 provides for applications for review. So far as it is relevant it is as follows:

Application for review

9.3.(1) A police officer who is aggrieved by a decision about -

(a) the selection of an officer for appointment to a police officer position, whether on promotion or transfer, if the selection procedures mentioned in section 5.2(2)(a) were required to be complied with; or

(b) the selection of an officer for transfer to a police officer position, if the selection procedures mentioned in section 5.2(2)(a) were not required to be complied with; or

(c) action against the officer for breach of discipline; or

(d) suspension or standing down of the officer; or

(e) another decision prescribed by regulation as open to review under this part;

may apply to have the decision reviewed by a commissioner for police service reviews.

(1A) An application for the review of a decision mentioned in subsection (1)(a) may only be made by a person who properly applied for appointment to the position concerned and was unsuccessful.

...

(3) Authority is hereby conferred on a commissioner for police service reviews -

(a) to hear and consider all applications for review under this part duly made;

(b) to make recommendations relating to any matters relevant to a review under this part.

Sections 9.4, 9.5 and 9.6 provide for procedures, the result of a review, and the effect of rescission of a decision.

Procedures

9.4.(1) An application for review under this part must be made as prescribed by the regulations or, where the regulations do not make any or sufficient provision, in accordance with directions of a commissioner for police service reviews.

(2) A review under this part is to be conducted as prescribed by the regulations or, where the regulations do not make any or sufficient provision, as determined by a commissioner for police service reviews, having regard to the following principles -

(a) a review is an administrative proceeding of a non-adversarial nature;

(b) proceedings on a review should be informal and simple;

(c) legal representation is not permitted to any person concerned in a review.

Result of review

9.5.(1) Upon conclusion of a review under this part, a commissioner for police reviews is to make such recommendations as that commissioner considers appropriate to the matter under review to the commissioner of the police service.

(2) The commissioner of the police service, upon consideration of the matter reviewed and having regard to the recommendations made, is to take such action as appears to the commissioner of the police service to be just and fair.

Effect of rescission of decision

9.6. If, following a review of a decision under this part, the decision is rescinded, it is to be taken that the decision was never made or implemented, whether or not any decision is substituted in its stead.

[16] Part 4 (Regulations 4.1-4.11) of the Police Service Administration Regulation 1990 deals with transfers, vacancies, and promotions. Regulation 4.2 concerns advertisements of a vacancy in a position within the police service. Regulation 4.3 provides that every application for appointment to a position advertised under regulation 4.2 is to be made in accordance with the directions of the Commissioner of the Police Service. Regulation 4.7 provides that the functions of a selection panel shall be as determined by the Commissioner.

[17] The respondent's directions in relation to promotion and transfer are set out in part 16 of the Human Resource Management Manual. Section 16.2 (Merit Based Selection) is relevant to this application. Section 16.2.2 (Purpose and Scope), so far as it is relevant, provides:

An important aspect of achieving the effective management of the Queensland Police Service is to ensure a best fit between people and the positions they occupy. Selection methods used by selection panels are to be transparent, effective and provide bias free selection decisions.

The fundamental principles underlying merit based selection for members of the Service are merit and equity which are outlined in:

• Section 5.2 of the Police Service Administration Act 1990 for police officers ...

Selection panels undertaking merit based selection for police officers and staff members are to adhere to these legislative provisions and the requirements of this policy when conducting a merit based selection process.

This policy applies to all advertised positions. Advertised positions means all positions advertised with an assigned vacancy number in the Queensland Police Gazette ...

Section 16.2.9 (Selection Process) provides inter alia that panel convenors and authorized members are to take appropriate action where necessary to ensure the process is conducted in accordance with Service policy. Section 16.2.11 (Recommendations and Appointment Process), so far as it is relevant, provides:

In determining the preferred applicant(s) for a position, selection panels must consider all aspects of the selection process utilised, for example, written applications, interviews, assessment day results, additional testing undertaken, referee checks and integrity checks.

Section 16.6.10.1 (Position to be Re-assessed) provides:

The panel reassessing a position is to allow the applicants the opportunity of updating material that will be considered in the new selection process. The updated information can relate to additional qualifications, experience or other information which is relevant to the selection criteria and attained after the closing date of the original vacancy.

[18] Under s. 20(2)(f) of the Judicial Review Act an application for review may be made on the ground that the decision in issue involved an error of law (whether or not the error appears on the record of the decision). On behalf of the applicant it was argued that the failure of the second assessment panel to take into account the applicant's experience and performance in the position he took up in May 2004 was a breach of s. 5.2(2), (5), and (6) of the Police Service Administration Act. It is convenient to deal first with that, the applicant's principal, argument.

[19] The effect of the use of the word 'must' in s. 5.2(2) is that selection on the basis of merit is a requirement of a decision to appoint a person to a police officer position and that there is no discretion to ignore merit in making such a decision: see

s. 32CA of the Acts Interpretation Act 1954. For the purposes of s. 5.2 merit of an officer comprises inter alia the potential of the officer to discharge the duties of the position in question (s. 5.2(5)(b)) and the industry shown by the officer in performance of the duties of office in the course of the officer's career (s. 5.2(5)(c)). Section 5.2(6) provides that for the purpose of determining the potential of an officer to discharge the duties of the position the performance of duties of office in the course of the officer's career and the range of practical experience of the officer in the Service must be taken into account: s. 5.2(5)(a) and (b). The use of the word 'must' in s. 5.2(6) makes it clear that taking into account the factors referred to in

s. 5.2(6)(a) and (b) is a requirement for the determination of the potential of an officer, which is one of the aspects of merit. There is nothing in the Police Service Administration Act that would justify excluding from consideration part of the officer's performance of duties of office in the course of his career or part of the range of practical experience of the officer in the Service.

[20] It was argued for the respondent that there was conferred upon those charged with making a decision under s. 5.2(2) a discretion to formulate procedures that were fair and equitable having regard to the history of the process. Reference was made to Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 C.L.R. 24 at

pp. 39-41 per Mason J. and at p. 55 per Brennan J., and Minister for Immigration and Multicultural Affairs v. Yusuf [2001] HCA 30; (2001) 206 C.L.R. 323 at pp. 347-348 per McHugh, Gummow, and Hayne JJ. According to the argument for the respondent the history of the process in this case justified the action taken by Superintendent Carew in excluding from consideration part of the respondent's performance of duties of office in the course of his career and part of the range of his practical experience in the Service.

[21] On my reading of s. 5.2(2), however, there is no discretion to fail to invite applications, to select on any basis other than the merit of the applicants, or to prevent unjust discrimination whether in favour of or against a person. It may be accepted that there is some discretion as to procedural matters such as time limits and the place at which and the way in which applicants are interviewed, but such procedures too must pass the test of being fair and equitable. Some flexibility may then be permitted in devising appropriate procedures for deciding upon applications but there is no power to dispense with the three requirements set out in s. 5.2(a) and (b). Furthermore, once it is accepted that merit must be the basis of selection it follows that by operation of s. 5.2(5) and (6) all of the performance and experience of an officer must be taken into account. To exclude part of the history of the performance and experience of an officer would lead to the absurd result that outstanding performance and experience could be ignored in some cases and misconduct or indifferent performance in others. That cannot have been, and I think manifestly was not, the intention of the legislature; nor can it have been the intention of the legislature to permit selection on any basis other than merit.

[22] Accordingly I conclude that the applicant has made out his case under s. 20(2)(f) of the Judicial Review Act and so is entitled to the relief he seeks. That conclusion is sufficient to dispose of this application, but for completeness I shall deal with the other issues that were raised in the course of the hearing.

[23] On behalf of the applicant it was argued that the making of the decision in issue was an improper exercise of the power conferred by the enactment under which it was purported to be made. Under s. 20(2)(e) of the Judicial Review Act an application for review may be made on the ground that the making of the decision in issue was an improper exercise of the power conferred by the enactment under which it was purported to be made. Section 23 of the Judicial Review Act provides, so far as it is relevant, that in s. 20(2)(e) a reference to an improper exercise of a power includes a reference to:

(b) Failing to take a relevant consideration into account in the exercise of a power.

[24] The failure to take into account the applicant's performance and experience for part of his career in the Police Service contrary to the provisions of s. 5.2(2), (5), and (6) of the Police Service Administration Act was clearly a failure of the kind referred to in s. 23(b); and, quite apart from the provisions of the Police Service Administration Act, the failure to take into account part of a police officer's career in deciding a question of promotion would be a failure of the kind referred to in any event in s. 23(b) because clearly the officer's whole history in the Service would be relevant.

[25] It was further argued on behalf of the applicant that Superintendent Carew and

Mr Hardie, who made the decision that résumés could not be updated after

February 2004 were not authorized by the respondent to disregard s. 16.6.10.1 of the Human Resource Management Manual or any provision of it. It was not in issue that the Manual consists of a series of directions given by the respondent pursuant to s. 4.9(1) of the Police Service Administration Act. Section 16.6.10.1 is clearly consistent with s. 5.2 of the Act: see s. 4.9(2). There was no evidence that Superintendent Carew and Mr Hardie were authorized by the respondent to disregard those directions and in consequence the members of the panel were obliged by s. 4.9(3) of the Police Service Administration Act to comply with the Manual. In that respect as well the decision in issue involved an error of law.

[26] It would appear that Superintendent Carew made her decision not to permit the inclusion in the résumés of the applicants any reference to performance and experience subsequent to February 2004 from a well-meaning but misguided attempt to overcome an apparent injustice to Sergeant Symes. It may be that the bases upon which she acted would on further scrutiny prove not to have been correct, but, even if they were, I conclude her decision was in contravention of

s. 5.2(2) and s. 16.6.10.1 of the Human Resource Management Manual. The fact that the applicant had acted in the position he occupied from May 2004 was relevant, and it was not rendered less so even if there had been some irregularity or oversight in the procedures adopted prior to his being appointed.

[27] Whichever version of Mr Hardie's advice to the applicant in early December is correct, that advice was in error in my view. On both versions it proceeded on the premiss that any direct reference to the applicant's acting position could properly and lawfully be excluded. It could not.

[28] A final argument advanced on behalf of the applicant rested upon an assertion that there had been a breach of the rules of natural justice. Under s. 20(2)(a) of the Judicial Review Act an application for review may be made on the ground that a breach of the rules of natural justice happened in relation to the making of the decision. It was argued on behalf of the applicant that if the respondent or his delegate were considering departing from the policy adopted by the respondent and incorporated in s. 16.6.10.1 of the Manual, procedural fairness required that the applicant should be given an opportunity to be heard on the question whether the policy should be applied. In this case the applicant was denied that opportunity.

[29] This application must succeed. I shall invite further submissions on the form of the order to be made.