Rucker v Stewart [2013] QSC 182

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - OPPORTUNITY TO PRESENT CASE - where the applicant was stood down from his employment as a police officer of the Queensland Police Service - where the commissioner for police service reviews did not afford the applicant the opportunity to present his case - whether the applicant should have had the opportunity to present his case for the review decision

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - GENERALLY - where the applicant was stood down from his employment as a police officer of the Queensland Police Service - where the applicant argued that there was insufficient material to enable the deputy commissioner to be satisfied that there were reasonable grounds that he is liable to disciplinary action as a threshold requirement to make the stand down decision - whether there was reasonable grounds

Police Service Administration Act 1990, s 6.1, s 7.4

Police Service (Discipline) Regulations 1990, reg 5, reg 8, reg 9, reg 10

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, cited

Box v The Director-General Department of Transport [1994] 2 Qd R 463. cited

Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, cited Foster v The Secretary to the Department of Education and Early Childhood Development [2008] VSC 504, cited Gedeon v NSW Crimes Commission [2008] HCA 43; (2008) 236 CLR 120, cited

Gregory v Philip Morris Pty Ltd (1987) 77 ALR 79, cited

Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234, cited

Lewis v Heffer [1978] 1 WLR 1061, cited

Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 249 ALR 44, cited

Minster for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1896) 162 CLR 24, cited

Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, cited

Pervan v Frawley [2011] TASSC 27, cited

Phan v Kelly [2007] FCA 269; (2007) 158 FCR 75, cited Quinn v Overland [2010] FCA 799, cited

State of South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, cited

Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 46 NSWLR 55, cited

Queensland Police Service Solicitor for the first and second respondents

[1] JACKSON J: The applicant ("Sgt Rucker") applies for judicial review of three decisions concerning his employment as a police officer of the Queensland Police Service ("Service"). The originating application challenged the validity of the first decision, but he relies on an amended form of application which covers all three.[1]

[2] By the first decision ("stand down decision"), made on 4 October 2011, the first respondent ("Deputy Commissioner"), who was then the deputy commissioner of the Service, as a delegate of the commissioner of the Service, stood down Sgt Rucker from duty as a police officer in reliance upon the power under s 6.1(1)(a)(ii) and s 6.1(1)(d) of the Police Service Administration Act 1990 ("the Act").

[3] By the second decision ("review recommendation"), made on 27 August 2012, the third respondent ("Review Commissioner") who was a commissioner for police service reviews recommended to the second respondent ("Commissioner"), who was then the commissioner of the Service, to affirm the stand down decision.

[4] By the third decision ("affirming decision"), made on 27 September 2012, the Commissioner took action to affirm the stand down decision having regard to the review recommendation.

[5] Sgt Rucker challenges each of the decisions on numerous grounds. The application for review and the submissions and affidavits he has filed are so vague and prolix, and the use of jargon in them is so indiscriminate that they are incomprehensible as a statement of the grounds of review. Accordingly, at the outset of the hearing I sought to identify the substance of his contentions. In the result, his points may be distilled into seven separate contentions, as I believe he articulated them at the hearing.

[6] First, he contends that the "reasonable grounds... that an officer is liable to disciplinary action under section 7.4" which must "appear" to the Commissioner under s 6.1, before the power to stand down is engaged, are those which a "prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations." Sgt Rucker submits that the power to stand down therefore is engaged only when the prescribed officer "considers" the matter, because before then an officer is not "liable" to disciplinary action within the meaning of s 7.4.

[7] Secondly, he contends that the stand down decision was made contrary to the requirements of the Human Resources Management Manual ("HRMM"). He submits that the method provided in the HRMM for action to stand an officer down was not followed. One point of difference was that the process neither originated with the nominated officer for that purpose nor did it pass through a relevant committee. Another was that the consideration of the question of whether or not to stand him down was not made in accordance with the list of matters required to be considered in accordance with the HRMM.

[8] Thirdly, he contends that as a matter of procedural fairness or natural justice the Deputy Commissioner was obliged to give him an opportunity to be heard before making the stand down decision, which did not occur.

[9] Fourthly, Sgt Rucker contends that there was insufficient material to enable the Deputy Commissioner to be satisfied that there were reasonable grounds that he is liable to disciplinary action as a threshold requirement to make the stand down decision.

[10] Sgt Rucker challenges the review recommendation relying upon the first four grounds in respect of the stand down decision. Additionally, as a fifth contention, he submits that the Review Commissioner declined to give him an opportunity to be heard on the substance of the grounds upon which the stand down decision was made, both on the day of the hearing of the review and by way of his prior attempt or attempts to meet with the Deputy Commissioner or other officers in the lead up to the review hearing for the purpose of putting his side of the matter.

[11] As to the affirming decision, Sgt Rucker sixthly contends that since the Commissioner had regard to a briefing note prepared for the purpose of the stand down decision as well as the review recommendation, the Commissioner was obliged to give him an opportunity to be heard.

[12] Seventhly, Sgt Rucker submits that none of the decision makers were entitled to take into account the prior disciplinary action or "managerial guidance" in reaching their decisions.

Stand down decision - relationship to a disciplinary action under the Act and regulations

[13] The power to stand an officer down is contained in s 6.1 of the Act as follows:

(a) it appears to the commissioner, on reasonable grounds that -

(i) an officer is liable to be dealt with for official misconduct; or

(ii) an officer is liable to disciplinary action under section 7.4; or

(iii) the efficient and proper discharge of the prescribed responsibility might be prejudiced, if the officer's employment is continued; or

(b) an officer is charged with an indictable offence; or

(c) an officer is unfit for reasons of health to such an extent that the officer should not be subject to the duties of a constable;

(d) stand down the officer from duty as an officer and direct the person stood down to perform such duties as the commissioner thinks fit; or

[14] Section 7.4 provides:

officer, in relation to a person liable to disciplinary action, includes a police recruit.

prescribed officer means an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question.

QCAT information notice means a notice complying with the QCAT Act, section 157(2).

(2) An officer is liable to disciplinary action in respect of the officer's conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations.

(a) decides an allegation of misconduct brought against the officer; or

(b) when deciding an allegation of breach of discipline brought against the officer, finds that misconduct is proved against the officer;

the commissioner must give a QCAT information notice to the officer and the Crime and Misconduct Commission for the decision or finding within 14 days after the making of the decision or finding.

(3) Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of -

(e) forfeiture or deferment of a salary increment or increase;

(f) deduction from an officer's salary payment of a sum

(4) Every order made by way of disciplinary action takes effect in law and is to be given effect.

(5) To remove any doubt, it is declared that a reference in the QCAT Act, section 157(2) to a decision includes a reference to a finding."

[15] Summarising, s 7.4(2) provides that "an officer is liable to disciplinary action... which the prescribed officer considers to be misconduct or a breach of discipline..." That liability is "on such grounds as are prescribed by the regulations". The "prescribed officer" is defined to mean an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question.

[16] The regulations identified are those made under s 10.28(1) of the Act, as made by the Governor-in-Council "for the purposes of this Act". They are the Police Service (Discipline) Regulations 1990. Regulation 4 redefines "prescribed officer" in the "circumstances of any case in question". An officer who is "authorised" by those regulations and who "has formed the opinion that, in the case in question, the officer should be disciplined on any ground referred to in regulation 9" is the "prescribed officer". Regulations 5, 6, 7 and 8 authorise the commissioner, a deputy commissioner, an assistant commissioner, a commissioned officer and a non-commissioned officer to take disciplinary action in certain circumstances. Regulation 9 sets out grounds for disciplinary action. Regulation 10 sets out disciplinary sanctions or the range of disciplines that may be imposed in accordance with regs 5 to 8.

[17] It is not suggested in this case that the Deputy Commissioner was the "prescribed officer", although he was authorised to be a prescribed officer. A discipline action may result in a disciplinary sanction under s 7.4(3) of the Act or Regulation 5 or 10 of those regulations.

[18] Simplified, Sgt Rucker's contention is that the power to stand down under s 6.1 is dependent upon there being a live process under s 7.4 or possibly that the liability to disciplinary action under s 7.4 has been considered and determined before the power to stand down is engaged. Expressed in terms of the Judicial Review Act 1991 ("JR Act"), the contention is that procedures that were required by law to be observed in relation to the making of the decision were not observed or that the decision was not authorised by the enactment under which it was purported to be made.

[19] This point may be dismissed out of hand. A power to stand down is a familiar interim process in the case of an unresolved complaint against a person who is employed in an organisation. The purpose of the power is to create a holding position during the period of the resolution of the complaint. It is completely counter-intuitive to suggest that such a power is engaged only after the determination of the matter. That would undermine the purpose of the power.

[20] It is no different in the case of s 6.1 in respect of a disciplinary action. If the disciplinary action has been determined, any disciplinary sanction will have been imposed. There would be no purpose in exercising the power to stand down. That power, itself, is not a disciplinary sanction.

[21] Thus, having regard to the purpose of the power and its context in the Act, when s 6.1(1)(a) provides, in the present tense, that "if it appears... that... an officer is liable to disciplinary action under s 7.4", that paragraph is not referring to an ascertained liability but a future liability upon a process that is not yet complete.

[22] However, does s 6.1 require that there be a live process by a prescribed officer before the power to stand down is engaged under s 6.1? Can it appear to the Commissioner that a police officer is liable to disciplinary action before the process under s 7.4 begins?

[23] There is nothing in the sections of the Act which suggest that the power to stand down contained in s 6.1 depends upon the start of a process for disciplinary action under s 7.4. In fact neither the Act nor the regulations specifically provide for starting a process of disciplinary action.

[24] It follows that Sgt Rucker's first contention must fail.

Stand down decision - relationship to a discipline process under the HRMM

[25] A manner of starting a process of disciplinary action is provided for by the provisions of the HRMM. This case was conducted on the footing that the HRMM was issued by the commissioner of the service and that, as such, under s 4.9 of the Act it is a "direction... the commissioner considers necessary or convenient for the efficient and proper functioning of the police service" and "every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction."

[26] Section 18.3 of the HRMM is headed "Disciplinary Hearing (Police Officers)" and runs to 24 pages of provisions. Clause 1.1 of s 18.3 provides for convening a disciplinary proceeding. Clause 3 provides for a process for a prescribed officer to decide whether there are sufficient grounds to proceed and, if so, to prepare a charge of misconduct or breach of discipline. Provision is also made in clause 3 for the form of an appropriate charge and for the manner of the hearing of a charge of either kind. Clause 4 provides for a direction as to the hearing to be given to the subject officer and for the manner of conduct of the hearing.

[27] Clause 13 provides for a process for standing down or suspending an officer, including that "this may occur at any time during the disciplinary process". Clause 13.5 provides for a process of recommendation by an officer designated Responsible Manager ("RM") to an Ethical Standards Monitoring Committee ("Committee") as to whether standing down is warranted. The Committee in consultation with the relevant Assistant Commissioner (Ethical Standards Command) are to notify the relevant Deputy Commissioner.

[28] Sgt Rucker made submissions predicated on the contention that because the process for starting a process of disciplinary action under s 18.3 of the HRMM had not been followed at the time when the stand down decision was made, the Deputy Commissioner's power to make that decision had not yet arisen. Expressed in terms of the JR Act, this contention is also that procedures that were required by law to be observed in relation to the making of the decision were not observed or that the decision was not authorised by the enactment under which it was purported to be made.

[29] In my view, those submissions must be rejected. Subject to one point, they would have the effect of construing the scope of the power under s 6.1 of the Act as being limited by the provisions of a direction made under s 4.9. The operation of the section of an Act, according to its proper construction, cannot be limited in that way, because the meaning of the Act is not to be ascertained by the terms of a later subordinate instrument.[2]

[30] An alternative way in which Sgt Rucker put the point forward was that unless a process had been started in accordance with the HRRM, it could not appear to the Deputy Commissioner on reasonable grounds that an officer is liable to disciplinary action. In my view, while in some cases the process under the HRRM will have been engaged when the power to stand down is exercised, the meaning of "reasonable grounds" in s 6.1(1)(a) is not that in the case of an officer who is liable to disciplinary action the process must be started first. In a case of this sort, the relevant reasonable grounds are those that make it appear to the commissioner for the police service (or his delegate) that "an officer is liable to disciplinary action under s 7.4."

[31] It follows that Sgt Rucker's second contention must fail.

Stand down decision - merits of reasonable grounds of liability to disciplinary action

[32] Section 6.1 is engaged, in circumstances like this case, if it "appears" to the commissioner "on reasonable grounds" that an officer is liable to discipline action.

[33] Sgt Rucker contends that the requirement of "reasonable grounds" is to be equated with the requirements under s 7.4 that the prescribed officer consider that the police officer is liable to disciplinary action. He submits that those requirements include being satisfied that the police officer engaged in the relevant misconduct or breach of discipline.

[34] The Deputy Commissioner and the Commissioner submit that there is no direct connection to be made between the requirement of reasonable grounds and the satisfaction that a prescribed officer must have to consider that a police officer is liable to disciplinary action.

[35] In my view, that submission must be accepted. In context, s 6.1 serves a purpose different from the purpose of s 7.4 already referred to. Accepting that there is a minimum content of the requirement for "reasonable grounds" under s 6.1 that is not to be equated with the requirements for a determination of misconduct or breach of discipline under s 7.4. Necessarily, the power under s 6.1 will arise before the process or processes required for a determination under s 7.4 have been completed. Usually, the question whether to exercise the power will fall to be answered before the materials or evidence to determine the matter will have been finalised.

[36] Once that point is reached, Sgt Rucker's challenge to whether there were reasonable grounds becomes a challenge to whether the stand down decision was rightly made on the merits of the "reasonable grounds".[3] In the language of the JR Act, the contention is that the decision was not authorised by the enactment under which it was made or that there was no evidence or other material to justify the decision.

[37] The points he made on that front may or may not have carried weight if the court were engaged in a merits review. However, under the JR Act, the Court's power to review a decision is not a review of that kind. Nor is it made so because the power in s 6.1 is conditioned upon the police officer's liability to disciplinary action appearing to the commissioner on reasonable grounds.

[38] When a power is conditioned on what "appears" to a nominated decision maker, that person must turn their mind to whether the stated condition exists. If they do so, although the court is able to interfere with the decision on judicial review based on whether there was a rational basis for the decision, the question is not whether the condition exists but whether it appeared to the decision maker to exist. Adding a requirement that the stated condition must appear to the decision maker "on reasonable grounds" introduces a threshold for the decision, based on an objective measure, as a jurisdictional fact. A jurisdictional fact of that kind is one which can be reviewed on judicial review.

[39] The High Court recently said of "jurisdictional fact" that "[g]enerally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the power or discretion in question. If the criterion be not satisfied then the decision will purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker."[4]

[40] Nevertheless, as Gummow J so clearly pointed out in Minister for Immigration v Eshetu:[5]

"... where the criterion of which the authority is required to be satisfied turns upon factual matters on which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question."

[41] It is important to keep in mind that even at this level, the Court is still not engaged in merits review. The question is whether, in that context, the Court is satisfied that there were not reasonable grounds for it to appear to the decision maker that the officer concerned will be or may be liable to disciplinary action as provided for in s 7.4.

[42] In this case, as a matter of context, the reasonable grounds required are those for the purposes of making the stand down decision. The decision maker is not determining the disciplinary action matter, or foretelling what the outcome of the matter might be. The "reasonable grounds" requirement is directed to the basis of the disciplinary action matter and to the evidence at the time of making the stand down decision.

[43] There is no word formula which usefully substitutes for the statutory language in terms of the matters which will satisfy the reasonable grounds requirement for the exercise of the stand down power. In the present case, Sgt Rucker submitted that the matters which were the subject of the potential disciplinary action matter in his case were minor or relatively minor, but he did not contend that they could not amount to a basis for a discipline action, with the possible exception of some matter he contended had been previously dealt with.

[44] As to the evidence, he submitted that the briefing note and transcript to which the Deputy Commissioner had regard presented an incomplete picture, and his side of the story was not put, but that does not mean that there were no reasonable grounds for it to appear that he is liable to disciplinary action. The exercise of the stand down power is not conditioned on a requirement that a full investigation be first completed. There was no reason advanced why the Deputy Commissioner was required to reject the contents of the briefing note or the transcript as a basis for exercising the stand down power in the circumstances of this case.

[45] It follows that Sgt Rucker's third contention must fail.

[46] Sgt Rucker contends that before a stand down order could be made in his case the Deputy Commissioner was obliged, as a matter of procedural fairness or to comply with the rules of natural justice, to give him an opportunity to be heard in answer to the contents of the briefing note and the transcript.

[47] In considering this question, it is appropriate to have regard to the other provisions of the Act which are engaged on the making of a stand down decision. With some omissions, they are that:

(a) the relevant officer is stood down from such duties as the commissioner thinks fit: s 6.1(1)(d);

(b) the officer is entitled to be paid salary and allowances at the rate as if the standing down had not occurred: s 6.2;

(c) the officer is relieved of the powers and duties of a constable at common law or under any Act or law: s 6.4(a);

(d) if aggrieved about the decision, the officer may apply to have the decision reviewed by a commissioner for police service reviews: s 9.4(1);

(e) the commissioner for police service reviews has the authority and duty to hear and consider the application for review if duly made and to make recommendations relating to any matter relevant to the review: s 9.4(3);

(f) the review is a non-adversarial administrative proceeding and proceedings should be informal and simple: s 9.4(2)(b);

(g) upon conclusion of the review the commissioner for police service reviews is to make such recommendations as he or she considers appropriate to the commissioner of the police service: s 9.5(1); and

(h) the commissioner of the police service, upon consideration of the matter reviewed an having regard to the recommendations made is to take such action as appears to him or her to be fair and just: s 9.5(2).

[48] The structure of these provisions discloses four important points as to whether there is any obligation to give an officer an opportunity to be heard before a stand down decision may be made. First, the decision relieves the officer of responsibilities and powers but does not reduce the salary or allowance entitlements. Secondly, the decision is subject to an independent review at which the officer has a right to be heard (although no right to legal representation). Thirdly, the review is one on the merits, so that the officer should be able to put material before the commissioner for police service reviews which rebuts or repels the material or evidence which tends to show that there are reasonable grounds on which it appears that the officer will be or may be liable to disciplinary action. Fourthly, following the review and recommendation of the commissioner for police service reviews, it is the commissioner of the police service who makes the substantive decision upon what action to take. Thus, the Act confers both the original power to stand down and the power to affirm or terminate a stand down decision after review upon the same repository.

[49] Having regard to the purpose of the stand down power and the structure of those provisions, it seems to me that the Act expressly provides for an appropriate opportunity for an officer to be heard as to why a stand down decision should be terminated. The review is not in the nature of an appeal to a higher repository of power. The commissioner for police service reviews ultimately makes a recommendation only, and it is that recommendation to which the commissioner must have regard when considering the appropriate action following the review. The nature of a stand down decision is not final - it is a procedure to temporarily hold the position, while the substance of a disciplinary action matter is determined. It does not amount to a final decision of any kind as to whether the police officer has been guilty of misconduct or breach of discipline. As a matter of course, the question of whether to stand an officer down most likely will be decided at the outset of a disciplinary action matter, where the material or evidence will not be finalised. It is counter-intuitive to conclude that at that stage the commissioner would be ready to weigh up both sides of the matter to form a concluded or near concluded view of the strength of the allegation of misconduct or breach of discipline.

[50] These matters indicate to me that the Deputy Commissioner was not obliged to give Sgt Rucker an opportunity to be heard in answer to the contents of the briefing memorandum or the transcript before exercising the power to stand down under s 6.1.[6]

[51] It follows that Sgt Rucker's fourth contention must fail.

[52] It is convenient to next consider the contention that Sgt Rucker was entitled to a further hearing by the Commissioner, after the review, but before the Commissioner made the affirming decision. This contention is another based on the obligation to accord procedural fairness or to comply with the rules of natural justice.

[53] The provisions in Part 9 of the Act for review of a decision made under Part 6, including a decision to stand down or suspend an officer from duty, follow the scheme outlined in paragraph 47 above, namely (d)-(e). There is nothing which requires the commissioner of the Service to make any further inquiry before taking action under s 9.5(2).

[54] "There are many illustrations of this legislative model which entails the holding of an inquiry by a body authorised to make a recommendation to a Board or a Minister which may make a decision rejecting the recommendation without conducting a further inquiry... The hearing before the recommending body provides sufficient opportunity for a party to present his case so that the decision-making process, viewed in its entirety, entails procedural fairness": State of South Australia v O'Shea.[7]

[55] In my view, the same holds true of s 9.5(2). On receiving the recommendations of the commissioner for police service reviews, the commissioner of the Service is not required to provide any further opportunity for the aggrieved person to be heard, before taking action, unless he or she proposes to take account of some new matter not appearing in the report of the recommending commissioner for police service reviews or before that commissioner.

[56] It follows that Sgt Rucker was not entitled to a further hearing by the Commissioner before the latter made the affirming decision and that Sgt Rucker's fifth contention must fail.

[57] There is no dispute that Sgt Rucker was entitled to be heard at the review hearing or that he was heard both in writing and orally. The subject matter of dispute, in relation to Sgt Rucker's sixth contention, is whether the hearing was curtailed in a way that was a breach of the requirement to afford Sgt Rucker procedural fairness or to comply with the rules of natural justice or to observe procedures that were required by law to be observed, in relation to the making of the decision. Alternatively, the contention might have been cast as an improper exercise of power in failing to take into account a relevant consideration.

[58] As previously outlined, the structure of the review process clearly gives an officer who is stood down the right to be heard. Is the review a merits review of the decision to stand down? If so, to what extent is the commissioner of reviews obliged to hear an aggrieved police officer's response to the allegations of misconduct or breach of discipline?

[59] The power is to hear and determine a review of the stand down decision in an administrative proceeding with informality. There is nothing in the statutory text or context to suggest that the hearing is in the nature of judicial review of the stand down decision, that is a hearing directed to the legality of the original decision rather than the merits of the decision.

[60] Nor is there anything in the statutory text or context to suggest that the review is to be heard and determined on the same materials as before the original decision maker. On the contrary, once it is accepted that the first opportunity of the aggrieved police officer to be heard is at the review, it would be unusual to constrain that right so that it excludes the opportunity to be heard on the merits of the decision to stand down.

[61] Thus, the review of a stand down decision made under s 6.1 based on an officer's liability to disciplinary action under s 7.4 is not confined to the materials before the original decision maker. That said, the review of such a stand down decision is not one which must or ordinarily should proceed as a full-blown hearing into the allegations the subject of the stand down decision and liability to disciplinary action, whether or not the aggrieved officer wishes to follow that course.

[62] The review in such a case may be appropriately confined to the subject matter of whether the decision to stand down the aggrieved person should be affirmed, revoked or varied pending the determination of the liability to disciplinary action. Where disputed questions of conduct are involved, and where there are matters of judgment on which reasonable minds could reasonably differ, the commissioner for police service reviews is not required to form a preliminary view of the outcome of the aggrieved person's liability to disciplinary action in order to make a decision on the review. The question for determination is more limited, namely whether the decision to stand down made should be affirmed or revoked or varied.

[63] Sgt Rucker swore that "the [Review Commissioner] advised that the only matter[s] that he could consider were in regards to non-compliance with legislation and/or policy and [he] was not able to consider matters which were listed as reasons for the issue of the stand down..."

[64] The factual context is that the review was conducted both on written materials and by an oral hearing. The Deputy Commissioner relied on an 11 page submission. Sgt Rucker relied on a 176 page written submission plus attachments. Among many other matters, Sgt Rucker's submission responded in detail to every paragraph of the Deputy Commissioner's submission. It has to be acknowledged that in preparing his written submission Sgt Rucker failed to recognise the statutory direction in s 9.4 of the Act that "proceedings on a review should be informal and simple". His written submission was neither.

[65] However, the reasons for decision of the Review Commissioner show that he considered the submissions made to him as follows:

"From about page 15 through to page 176 [Sgt Rucker] raises matters going to whether or not he is guilty of misconduct or guilty of a breach of discipline. He raises all manner of issues in his defence but all of those go to whether as a matter of substance he is guilty of misconduct or breach of discipline, not whether he is liable to a discipline process. Issues of substantive guilt (or otherwise) are not issues relevant to the review...

My view is that the Deputy Commissioner has properly and legitimately come to a decision on reasonable grounds that [Sgt Rucker] was liable to disciplinary action. It is clear that the Stand Down Notice... was appropriately issued after a fair process in which the Commissioner considered matters relevant for his consideration. The Deputy Commissioner appears to have come (on reasonable grounds) to the appropriate decision..."

[66] As well, the Review Commissioner "carefully read" the executive briefing note relied upon by the Deputy Commissioner in making the stand down decision which was placed before the Review Commissioner for the purposes of the review. Having precisely identified relevant conduct in respect of which Sgt Rucker may be liable to disciplinary action, the Review Commissioner continued:

"...I think that it is evident that the Deputy Commissioner had reasonable grounds on which to consider that [Sgt Rucker] was liable to discipline on one or all of these four bases.

In his written submission [Sgt Rucker] appears to want to minimise the conduct alleged against him as minor in nature. However, the four allegations raised are ones that are hardly minor. Rather, they may well represent issues that call into question [Sgt Rucker]'s preparedness to follow direction from superior officers." (emphasis added)

[67] I have refrained from setting out the detail of the relevant allegations. It is not necessary to do so at this point to decide this aspect of the case on judicial review. It is also not necessary to enter into the debate about whether some or all of the allegations are minor. The point, for present purposes, is that it appears from the extracts from the reasons for decision of the Review Commissioner that he did entertain the matters relied on by Sgt Rucker in his written submission in deciding the review, and that he did not impermissibly confine his consideration to what was before the Deputy Commissioner.

[68] In Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[8] the plurality reasons said:

"When the Full Court referred to 'beneficial construction', it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker. The Court continued: 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error'.

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." (citation omitted)

[69] In my view, the reasons for decision of the Review Commissioner in the present case, read in that manner, do not disclose either that he impermissibly narrowed the hearing of the review so that he failed to take into account a relevant consideration that he was obliged to consider or that he denied Sgt Rucker the opportunity to be fairly heard in support of his application for review of the stand down decision.

[70] The allegations which were the subject of the stand down decision included that Sgt Rucker "breached Regional policy relating to special service duty concerning wide load escorts" and that he "breached a direction from the then Deputy Commissioner McGibbon issued in January 2000, by listing the police establishment 31 Station Road Indooroopilly as his residential address on his driver's licence."

[71] In the executive briefing note which was provided to the Deputy Commissioner, the Review Commissioner and the Commissioner in relation to each of the decisions a section headed "Background" identified that Sgt Rucker "has been the subject of... disciplinary complaint matters... in recent times" which comprised "breaching of Metropolitan North Regional Policy Circular 1/2011 in relation to special service duty concerning wide-load escorts - CSS 2011/1078 refers" and "breaching a direction from then Deputy Commissioner Ron McGibbon in January 2000 in listing the police establishment at 31 Station Road, Indooroopilly as his residential address on his drive's licence - CSS 2011/01105 refers".

[72] Those two matters were described in another section of the briefing note as "unfinalised". There were two other more recent matters dealt with in the briefing note which it is unnecessary to mention, although they are related to the matter of the address shown on Sgt Rucker's driver's licence.

[73] On the face of the briefing note, there was no basis to conclude that any of the matters was a matter for which there had been a finalised disciplinary action so as to affect whether it could have appeared to the Deputy Commissioner on reasonable grounds that Sgt Rucker is liable to disciplinary action in respect of that matter.

[74] The Review Commissioner did not refer to the allegation concerning the special service duty concerning wide-load escorts or the allegation concerning the residential address on Sgt Rucker's licence in his reasons for decision. Instead he focussed on the two other more recent allegations which were related to the residential address.

[75] Before the Review Commissioner, the Deputy Commissioner's submissions referred to other older and separate matters in respect of which Sgt Rucker had been given managerial guidance, namely making public comment adverse to the Service and circulating an email containing insulting and disparaging remarks about senior officers. But those matters formed no part of the allegations in respect of which Sgt Rucker is alleged to be liable to disciplinary action and may be put to one side.

[76] Sgt Rucker stated in his written submission to the Review Commissioner that following discussion with his previous inspector in 2009 he believed there were no issues with listing 31 Station Road, Indooroopilly as his residential address on his driver's licence. But he also acknowledged in another part of the submission that Inspector Amos had said to the contrary, namely that the matter was left with Sgt Rucker to do a report setting out his reasons for doing so. Whether or not Sgt Rucker believed that informal discussion with his inspector in 2009 had resolved any issues about his use of 31 Station Road, Indooroopilly as his residential address on his driver's licence, those facts were insufficient for the Review Commissioner to clearly conclude that subject matter was formally resolved in 2009, in such a way as to require a revocation of the stand down decision.

[77] Equally, Sgt Rucker's belief that there was no managerial guidance in respect of the wide-load escort duty matter is inconsistent with that matter having been clearly formally concluded by action of that kind. Those facts would not have been sufficient for the Review Commissioner to clearly conclude that the wide-load escort duty matter was finally resolved in such a way as to require a revocation of the stand down decision, because Sgt Rucker is not liable to disciplinary action in respect of that matter.

[78] Accordingly, I find that Sgt Rucker has not shown that the Review Commissioner failed to take into account a relevant consideration in reaching the decision in the review recommendation by failing to expressly consider either of those matters.

[79] It follows that Sgt Rucker's seventh contention must fail.

[80] As none of Sgt Rucker's seven contentions has succeeded, the application must be dismissed with costs.

[81] I would add that in the course of these reasons, where possible, I have refrained from discussing unnecessary material, either at the stand down decision stage or at the review recommendation and affirming decision stage, or in the scope of the submissions or contentions made before me. I took that course out of a desire not to prejudice Sgt Rucker's position. There are aspects of the submissions before the Review Commissioner and of the affidavits and submissions read and made before me which might tell against Sgt Rucker in other proceedings. My aim has been not to exacerbate any such possibilities. I add that in the conduct of the proceeding before me Sgt Rucker conducted himself with decorum and complied wholeheartedly with directions that I made during the hearing.

[1] The amended application is on the file as an exhibit in an interlocutory hearing.

[2] Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 244; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 249 ALR 44 at [19].

[3] Compare the analogous common law right of an employer: Quinn v Overland [2010] FCA 799 at [62]; Gregory v Philip Morris Pty Ltd (1987) 77 ALR 79 at 100.

[4] Gedeon v NSW Crimes Commission [2008] HCA 43 at [43]; [2008] HCA 43; (2008) 236 CLR 120 at 139.

[5] [1999] HCA 21; (1999) 197 CLR 611 at [137]; see also Pervan v Frawley [2011] TASSC 27 at [66]- [68]; Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119; Minster for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1896) 162 CLR 24 at 41; cf Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 46 NSWLR 55 at .

[6] Compare Pervan v Frawley [2011] TASSC 27 at [58]- [61]; Foster v The Secretary to the Department of Education and Early Childhood Development [2008] VSC 504 and Quinn v Overland [2010] FCA 799. See also Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 578; Phan v Kelly [2007] FCA 269; (2007) 158 FCR 75 at 82-85; Box v The Director-General Department of Transport [1994] 2 Qd R 463 at 565; and Lewis v Heffer [1978] 1 WLR 1061 at 1078-1079.

[7] [1987] HCA 39; (1987) 163 CLR 378 at 389 per Mason CJ; see also at 410, per Brennan J.

[8] [1996] HCA 6 at [30]- [31]; (1996) 185 CLR 259 at 271-272.