Walsh v State of Queensland

Industrial Relations Act 2016 (Qld) s 562B

Public Sector Act 2022 (Qld) s 44, s 45, s 130, s 131(1)(e), s 133(e)

Queensland Police Service's Recruitment and Selection Guidelines - Staff Members cl 12.1, cl 12.2

Recruitment and selection (Directive 07/23) cl 9.6, cl 9.8

Adams v Queensland [2025] QIRC 8

Bayntun v Queensland (Department of Tourism, Innovation and Sport) [2022] QIRC 361

Clare v State of Queensland (Department of Education) [2022] QIRC 492

Clark v State of Queensland (Queensland Corrective Services) [2024] QIRC 112

Cleary v Queensland (Department of Resources) [2022] QIRC 416

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16

Henning v State of Queensland (Queensland Treasury) [2022] QIRC 487

Henning v State of Queensland (Queensland Treasury) [2023] ICQ 009

Kumar v State of Queensland (Department of Transport and Main Roads) [2024] QIRC 84

Williams v State of Queensland (Queensland Corrective Services) [2024] QIRC 6

Wyer v State of Queensland (Department of Education) [2022] QIRC 408

• [1] Mrs Natasha Walsh ('Appellant') appeals the decision of the State of Queensland (Queensland Police Service) ('Respondent') to not promote her to a position at a higher classification ('Decision'). The position in question is a Divisional Administration Officer (AO4) position within the Rockhampton Prosecution Services ('Position').

• [2] The Appellant challenges the selection process for the Position, which the Appellant sought through an open recruitment process but did not win. The Appellant takes issue with the expertise of the selection panel members, whether the Appellant's experience acting in a relieving capacity in the Position had been overlooked or undervalued, whether the Appellant's interview ability was unfairly used against her, whether the selection panel should have placed any weight on the successful candidate's competence in a particular computer program and whether the members of the selection panel should have withdrawn due to possible conflict of interest and conscious or unconscious bias.

• [3] The recruitment process for the Position began on 14 March 2024 when Acting Superintendent Paul Biggins created and approved the recruitment and selection panel composition for the Position. The Position was advertised until 10 April 2024. There were twenty-eight candidates in total and, on 10 April 2024, an email was sent to those candidates advising them on the composition of the two-person selection panel.

• [4] After review of the applications, both panel members withdrew because both the Appellant and another candidate had previously worked with those panel members and were friends. Furthermore, the panel convenor had familial ties to one of the applicants. The selection panel was then amended on 14 May 2024, and the candidates were notified of the new panel members on 30 May 2024. The members of the newly configured selection panel were Senior Sergeant Hows, Disaster Management Support Officer, Rockhampton, Capricornia District, Central Region ('Panel Convenor') and Ms Hannah Bridgeman, District Workforce Coordinator, Capricornia District, Central Region (AO5) ('Panel Member') ('the Panel').

• [5] A process of shortlisting the candidates brought the number of candidates down to five. Two of those candidates withdrew, leaving three to be interviewed, including the Appellant. The Panel then conducted interviews on 18 June 2024. The Panel subsequently compiled a selection report, which was approved by the relevant delegate on 2 July 2024.

• [6] The Panel advised the three candidates, including the Appellant, of the outcome on 3 July 2024 and invited each candidate to contact the Panel Convenor to obtain feedback if they wished. The Appellant took up that opportunity and the Panel Convenor provided feedback to the Appellant on 9 July 2024.

• [7] The promotion decision was published in the Queensland Government Gazette on 2 August 2024. The Appellant filed her appeal on 12 August 2024.

• [8] Section 130 of the Public Sector Act 2022 (Qld) ('PS Act') says:

(a) an appeal may be made against the decision under section 131 ; and

(b) the person is entitled to appeal against the decision under section 133 .

• [9] Section 131(1)(e) of the PS Act says:

(1) An appeal may be made against the following decisions - ...

• [10] Section 133(e) of the PS Act says:

The following persons may appeal against the following decisions -

...(e) for a promotion decision - a public sector employee employed on a permanent basis who is aggrieved by the decision and is entitled to appeal under a directive;...

(1) This section applies to a public service appeal made to the commission.

(2) The commission must decide the appeal by reviewing the decision appealed against.

(3) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

(4) For an appeal against a promotion decision or a disciplinary decision under the Public Sector Act 2022 , the commission -

(a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but

(b) may allow other evidence to be taken into account if the commission considers it appropriate.

• [12] Section 44 of the PS Act says:

(1) The purpose of this section is to ensure the recruitment and selection of a high-performing, apolitical and representative public sector workforce.

(2) A person undertaking a recruitment and selection process in a public sector entity, including, for example, making a decision about employment of a public sector employee, must undertake the process in accordance with the principles mentioned in subsection (3) .

(a) recruitment and selection processes must be directed to the selection of the eligible person best suited to the position; and

(b) recruitment and selection processes must be fair and transparent; and

(c) recruitment and selection processes must reflect the obligations under chapter 2 relating to equity, diversity, respect and inclusion.

• [13] Section 45 of the PS Act says:

(1) A person selected for employment in or to a public sector entity must be the eligible applicant best suited to the position.

(2) In deciding the eligible applicant best suited to a position, a person undertaking a recruitment and selection process in a public sector entity -

(a) must consider each eligible applicant's ability to perform the requirements of the position; and

(i) the way in which each eligible applicant carried out any previous employment; and

(ii) the potential of each eligible applicant to make a future contribution to the entity; and

(iii) the extent to which the proposed decision would contribute to fulfilment of the entity's obligations under chapter 2 , including, for example, the objectives, strategies and targets stated in the entity's equity and diversity plan.

• [14] The relevant Directive is the Recruitment and selection (Directive 07/23) ('Directive 07/23'). Clause 9.6 of Directive 07/23 says:

9.6 In determining the composition of a selection panel (which must include a minimum of two people), a chief executive must consider diversity of the panel as a key factor for successful recruitment, particularly in the context of their obligations under chapter 2 of the Act.

• [15] Clauses 9.8(a)-(b) of Directive 07/23 says:

9.8 To promote integrity and diversity in recruitment, selection panels must:

(a) consider and declare any actual, potential or reasonably perceived conflicts of interest between each panel member and the applicants, or, the absence of such conflicts of interest

(b) consider elements of conscious or unconscious bias that may impact the process, including mitigation strategies

• [16] Clauses 12.1 and 12.2 of the Queensland Police Service's policy document Recruitment and Selection Guidelines - Staff Members ('Guidelines') say:

Whilst Regions/Commands/Divisions may manage the Section Panel process, the final composition is a decision for the Delegated Officer.

Selection panels for the selection of staff members are to consist of a minimum of two (2) people. Delegates are to consider the diversity of the panel as a key factor for successful recruitment with appropriate gender balance, cultural competency and addressing the panel's unconscious bias.

As a minimum requirement, selection panels must have at least:

• one panel member who has completed the QPS endorsed Panel Member Training workshop

• one male and one female (unless the Delegated Officer is satisfied that this is not practical in a particular case)

• at least one member of the panel have sufficient knowledge, skills or experience to thoroughly understand the nature of the duties of the position

When recruiting staff members within discrete communities, Delegated Officers should consider including a First Nations representative on the panel. Where a suitable First Nations community member is not available within that discrete community, the Delegated Officer may consider a suitable First Nations QPS employee to be on the panel.

Prior to approving the panel, Delegated Officers must also consider the availability of panel members such as planned absences/work commitments across the selection process timeframe.

Applicants are to be informed of the composition of the selection panel prior to the selection panel process commencing.

For Senior Executive Service level panels, see cl 9.8 of the Recruitment and Selection Directive 07/23

The primary role of all members of a selection panel is to identify and recommend the applicant who is assessed as the eligible applicant best suited to the position.

Panel members must declare whether or not they have any actual or potential conflicts of interests which may be seen to unduly advantage or disadvantage an applicant, including where a selection panel member is related to or has a close personal or commercial relationship with an applicant. If a member of the selection panel is related to or has a close personal or commercial relationship with an applicant, they must declare this and step down from the panel.

A close personal or commercial relationship with an applicant is different to a member possessing personal knowledge of an applicant. Personal knowledge of the applicant does not preclude the member from sitting on the panel. Personal knowledge must be declared to the Delegated Officer and other panel members and documented. The mere fact that a panel member may have knowledge adverse to the interests of an applicant is not of itself a sufficient basis for determining a reasonable basis of apprehension of bias. Each panel member is to complete a declaration in relation to each applicant for whom they have personal knowledge and share that with the other panel members.

Panel members must conduct themselves ethically in order to make fair, unbiased and defendable decisions, and abide by information privacy requirements and maintain confidentiality with regard to applicant information.

Each panel member is to complete the Selection Panel Conduct and Personal Knowledge Declaration. The forms are to be kept with all other panel documentation.

The Advertised Position Selection Report relating to the selection process is to include a detailed explanation on how the selection panel dealt with their personal knowledge of applicants for the position.

Each member of the selection panel is equally responsible for:

• understanding the responsibilities of the advertised position

• being familiar with, and applying, the legislative and industrial requirements for selection processes

• complying with legislation, policy and procedures

• considering elements of conscious or unconscious bias that may impact the process, including mitigation strategies

• determining the selection strategy for the advertised position, considering how the process can be accessible, inclusive and culturally safe

• undertaking the selection of applicants in a fair and transparent manner

• reporting all interactions with applicants when such interaction occurs outside the approved selection process (NB: Includes in person, telephone, written correspondence)

• completing all selection documentation and making selection recommendations to the Delegated Officer, and

• participating in all selection processes used to make a final recommendation

• [17] In Colebourne v State of Queensland (Queensland Police Service) (No. 2),[1] his Honour, Merrell DP, held that the phrase 'fair and reasonable' should not be understood by reference to the legal standard of reasonable, but rather takes the ordinary meaning of those words. It is not a test of legal reasonableness applied in judicial review proceedings.[2]

• [18] In Adams v Queensland,[3] McLennan IC interpreted the words 'fair and transparent' process within the meaning of section 44 of the PS Act and of Directive 07/23:

Importantly, the PS Act and Directive mandates that "recruitment and selection processes must be fair and transparent." The terms "fair" and "transparent" are not defined therein, though the Macquarie Dictionary provides that:

• · fair means to be "free from bias, dishonesty or injustice";

• · bias means "a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question"; "to influence, usually unfairly";

• · transparent means "open, frank or candid": "open to public scrutiny, as government or business dealings".[4]

• [19] In Wyer v State of Queensland (Department of Education) ('Wyer'),[5] Dwyer IC considered a promotion decision where the recruitment process was littered with issues. The successful candidate was the only one of the four applicants to be interviewed and was also the only candidate who had a professional working relationship with the panel members.[6] On top of that, there were serious concerns about the successful applicant's competency that were dismissed by the respondent without investigation.[7] Dwyer IC found that there was no evidence of actual bias and accepted that the existence of a professional relationship alone does not necessarily point to a conflict of interest.[8] However, Dwyer IC found there were enough issues with the rest of the recruitment process that gave rise to a perception of bias significant enough to render the decision unfair and unreasonable.[9]

• [20] In Henning v State of Queensland (Queensland Treasury) ('Henning'),[10] her Honour, Hartigan DP, considered a promotion decision where the appellant alleged that there was a conflict of interest between the panel members and the successful applicant.[11] Her Honour found that merely working with a successful applicant does not by itself establish a conflict of interest, and that the appellant in Henning did not put forward any cogent evidence to establish how such a conflict would infect the decision-making process.[12] That decision was upheld on appeal.[13] The appellant in Henning did not focus any of his submissions on the perception of bias, choosing instead to allege, without sufficient evidence to substantiate the allegations, that there was actual bias influencing the decision to offer the job to another candidate.[14]

• [21] In Williams v State of Queensland (Queensland Corrective Services) ('Williams'),[15] Pidgeon IC considered several grounds of appeal in a promotion decision. One of the grounds was an allegation of bias.[16] The appellant based that ground of appeal on the feeling that she must have upset someone somewhere within the department and that the selection panel (made up entirely of people within the same department) was affected by bias against her as a result.[17] Pidgeon IC found that the appellant had not produced any evidence proving the allegation of bias.[18] Pidgeon IC also relevantly observed that "[i]t is not unusual for panels to consist of people from the same workplace as applicants, and it is for this reason, in part, that the panel is required to consider potential conflicts, declare these and if necessary, put mitigations or strategies in place".[19] Pidgeon IC went on to order that the decision was, for that reason and others, confirmed.[20]

Case law as to the relevance of panel members' experience

• [22] In Cleary v Queensland (Department of Resources) ('Cleary'),[21] McLennan IC considered an argument by the appellant that the promotion decision was not fair and reasonable because none of the panel members had worked in a similar role in the unit or a role with similar responsibilities.[22] McLennan IC found that panel members having experience in the promotional roles is a valuable attribute for a panel member to have, but is by no means necessary and does not by itself render a selection process defective.[23]

• [23] In Bayntun v Queensland (Department of Tourism, Innovation and Sport),[24] ('Bayntun') Power IC dealt with an argument that the promotion decision was not fair and reasonable because the verbal feedback given was general and not constructive.[25] Power IC found that "adequacy of feedback is not a consideration for the purposes of determining if a selection process was fair and reasonable".[26] Relatedly, Pidgeon IC found in Kumar v State of Queensland (Department of Transport and Main Roads) that merely disagreeing with the outcome of a selection process is not indicative of a deficiency in that process.[27]

Case law as to the relevance of interviewing ability

• [24] The abovementioned case of Williams also dealt with the issue of interviewing ability in a selection process. Pidgeon IC rejected the argument that the appellant's substandard interviewing skills going against her rendered the decision not fair and reasonable.[28] Pidgeon IC did not accept this was a deficiency in the recruitment process.[29]

Case law as to the relevance of considering a candidate's previous experience

• [25] In Clark v State of Queensland (Queensland Corrective Services) ('Clark'),[30] Caddie IC rejected the argument that the appellant's previous experience had to be considered as part of the selection process.[31] Caddie IC found that:

The requirement he raises, to consider previous employment and future contribution is not mandatory. Rather, the mandatory requirement is to assess each eligible applicant's ability to perform the requirements of the position, which has demonstrably been undertaken in this process.[32]

• [26] Likewise, in Clare v State of Queensland (Department of Education) ('Clare'),[33] Pidgeon IC addressed an argument that the appellant's interview was weighted too heavily over her prior experience in the role.[34] Pidgeon IC found that the panel was justified in giving particular credence to the interview, given the written application by the appellant and the successful applicant were of similar merit while the interview of the successful applicant was clearly better than that of the appellant.[35]

• [27] The Respondent first addresses the supposed deficiencies with the Panel. The Respondent submits that in creating the panel it abided by the "Whole of Government" recruitment processes, which includes the provisions outlined in chapter 3, part 3 of the PS Act and in Directive 07/23. The Respondent points in particular s 44(3) of the PS Act, and to cl 9.6, 9.8(a) and 9.8(b) of Directive 07/23.

• [28] As noted above, the initial panel had to withdraw because of conflicts between the panel members and two of the applicants. The Respondent submits that the inspector, Mr Ian Park of Central Queensland Prosecution Services ('Inspector'), formed the view that the Panel could not include other prosecutions staff from the Rockhampton Prosecution Corps, as they all knew the candidates too well. The Inspector then extended his search to the Rockhampton District and landed on the Panel Convenor and Panel Member as the panel members.

• [29] The Respondent submits that the Inspector chose the Panel Convenor because he had four years' experience as a Prosecutor and five years' experience as Officer in Charge over two stations, where he also managed Administration Officers. The Inspector also chose the Panel Member because she, being a workforce coordinator, had oversight of numerous administrative positions including Administration Officer and herself had experience as a Divisional Administration Officer. The Respondent submits that the experience of the Panel members meant they clearly understood the responsibilities of the advertised position.

• [30] Both the Panel Convenor and the Panel Member also filled in a "Declaration of Knowledge & Confidentiality - Staff Members" form declaring there was no conflict of interest. In each declaration form, the level of contact with the successful candidate was stated as "Regular - Currently working together in Cap District Office". The view or impression of the successful candidate was stated as "Neutral". Superintendent Amanda Brownhill approved the Panel on 14 May 2024 and the Panel composition was then sent to the applicants. The Panel then made inquiries with the Inspector, which included inquiries as to the Inspector's availability to clarify information specific to the AO4 position.

• [31] The Respondent argues that the Panel was therefore sufficiently knowledgeable about the Position. The Respondent also cites McLennan IC's observation in Cleary with regard to panel selection that:

Although there may have been some value in including a panellist who has undertaken the promotional role or a similar role, the Protocol does not require it. The Appellant has not convinced me, with reference to the considerations that should be taken into account, that the Department has failed to comply with Recruitment and Selection Directive or the Protocol. I am not persuaded that the panel composition renders the selection process defective and therefore dismiss this ground of appeal.[36]

• [32] The Respondent argues that the Panel composition in this case, similar to Cleary, met all the requirements of the Act, Directive 07/23 and the Guidelines. The Respondent further argues that there is no requirement that panel members be from the exact area that will work with the vacant position, and in any event, this was not possible in this situation for the reasons outlined above. The Respondent submits that the composition of the Panel was therefore fair and reasonable.

• [33] Turning now to the adequacy of feedback, the Respondent submits that the Panel Convenor says he provided the following feedback based on the selection report:

(a) The successful candidate's interview demonstrated extensive knowledge and skills, provided comprehensive and concise answers to interview questions, and addressed the key accountability of the position to a high standard, all while using their entire allocated interview time.

(b) The Appellant's interview, while satisfactory and rendering the Appellant suitable to the role, did not articulate answers to the same standard as the successful candidate, with the Appellant's answers being more basic. The Appellant also did not use the entire allocated interview time and did not take the opportunity to add further detail to previous responses despite having the opportunity to do so.

• [34] Whilst agreeing that the Panel did give feedback that the successful candidate received marks for being able to use the 'Objective' software, the Respondent argues that that did not carry any significant weight and was not a decisive factor.

• [35] The Respondent cites Power IC's decision in Bayntun as support for the proposition that "the adequacy of feedback is not a consideration for the purposes of determination if a selection process was fair and reasonable".[37] The Respondent argues that the Panel Convenor provided specific feedback and that, even if the feedback were general, the adequacy of any feedback is not a relevant consideration for this Appeal.

• [36] As to whether the allegation that the Panel Convenor was unaware that the Appellant had been relieving in the Position, that is denied. The Respondent submits that the Panel Convenor was aware of this fact. The Respondent submits this fact was actually discussed by the Panel prior to the interview. Further, the Respondent submits that the Panel Convenor, in the feedback session with the Appellant, actually said words to the effect of "the [Appellant] must be disappointed with the outcome having been relieving in the position for a substantial period of time".

• [37] In addition to responding to those above grounds, the Respondent points to the handwritten notes that formed part of the interview process. These comprise responses to three standard interview questions. The candidates prepared their own "personal notes" in response to these questions. The interviewers also took notes of the responses to those questions during interview. The Respondent compares both personal and interviewer notes as between the successful candidate and the Appellant. The submission is that these notes demonstrated that the Appellant's answers were generally more basic and less thoughtful than those of the successful candidate.

• [38] The Respondent details that comparison for each of the three standard questions:

(a) As to the first question concerning the candidate's approach to developing staff into their role, asking for examples of supervising, training and developing staff the successful candidate detailed factors such as understanding the skill set, providing a mentor or seeking feedback from staff member as to other options that could be utilised for development. In comparison, the respondent submits, the Appellant's notes were basic and transactional in nature and did not show the higher-level support for staff members that the successful candidate was able to demonstrate.

(b) As to the second interview question concerning the prioritisation of tasks, the Respondent submits that the successful candidate set out a response to prioritising tasks showing that they had a team mentality as well as providing a tangible example of where they have successfully achieved this in their past position. However, the Appellant did not show the same initiative and instead focused on lower-level tactics such as prioritising by deadline dates and seeking guidance from superiors when unsure.

(c) As to the third question concerning the importance of maintaining records, making good file notes and repercussions if not done correctly, the Respondent submits that the successful candidate outlined their ability to use two record systems (including the one referred to as "Objective") and made it clear why it was important to be able to locate information quickly and how they applied these skills in their current position. However, whilst the Appellant demonstrated an understanding of the importance of accurate record keeping for follow-up purposes, she did not expand on her answer as broadly as the successful candidate did.

• [39] The Appellant first refers to many of the same provisions in the PS Act and Directive 07/23 as the Respondent does. The Appellant also draws particular attention to s 45(1) of the PS Act, which says:

(1) A person selected for employment in or to a public sector entity must be the eligible applicant best suited to the position.

• [40] The Appellant submits that a properly composed panel is key to ensuring a fair and transparent recruitment process. The Appellant then goes on to outline two arguments in support of this ground of appeal. The first is that the Panel ought to have withdrawn for a potential or perceived conflict. The second is that the Panel did not have sufficient expertise in relation to the nuances of the team that the Position was situated in and should have brought on an expert as a third member of the Panel.

• [41] As for the first argument, the Appellant says there was a perceived conflict of interest arising from the Panel members having worked with the successful applicant previously that meant the Decision was not fair and reasonable. The Appellant says that she did not raise this conflict because she was not sent a list of the shortlisted candidates. The Appellant also submits the declarations of conflict that the panel members filled out did not address any potential or perceived conflict.

• [42] As to the second argument, the Appellant submits that:

(a) the Panel Convenor had not been a prosecutor since at least 2019, and so would therefore lack the knowledge needed;

(b) there is no evidence to substantiate whether the members of the Panel clearly understood the responsibilities of the Position; and

(c) there is no evidence to substantiate whether either member of the Panel had been employed as an Administration Officer within a Prosecutions Office in the Queensland Police Service.

• [43] The Appellant points to the communication from the Panel to the Inspector requesting a third panel member as a subject matter expert. The Appellant also says that there is no evidence that the Inspector provided advice to the Panel improving their knowledge of the situation. The Appellant contends that this shows, I surmise, that the two Panel members did not hold sufficient expertise.

• [44] The Appellant also responds that she did not claim that there must be a Panel member from the exact area where the Position is situated, but rather, that is a necessary consideration. The Appellant says that having such a Panel member from the exact area is important given the nature of the Position, the originally comprised panel, the Inspector's enquiries when forming the Panel, and the concession by the Respondent that a person from the exact area would have been 'valuable'. The Appellant further disputes the Respondent's claim that Divisional Administration Officer roles are generally consistent across different areas, arguing that administration requires stringent training in all aspects of the specialised section.

• [45] The Appellant then addresses the second ground of appeal that the Appellant was not provided adequate feedback. The Appellant argues in reply that the feedback she received provides insight into the decision-making process and therefore insight into whether the decision complied with the PS Act and Directive 07/23. The Appellant notes that she was considered suitable but submits that she was not able to articulate her extensive knowledge and experience of the Position. The Appellant says that the Panel used this lack of articulation against her. The Appellant further argues that the fact that she had seven minutes left in the interview, while the successful applicant used up all the time, was an irrelevant consideration. The Appellant also submits that if the ability to use the "Objective" computer program did not carry any significant weight, then it was not necessary to provide feedback on this to the Appellant. The Appellant also argues that the generality of the feedback meant that the Panel did not adequately carry out the selection process.

• [46] On the third ground of appeal that the Panel Convenor was unaware of the Appellant's relieving in the Position, the Appellant submits in reply that the Panel Convenor said "you have not been relieving in this role long?" and when told how long the Appellant had been relieving in the role said "Oh I did not know that". The Appellant also concedes that the Panel Convenor did say that "they know the Appellant must be disappointed with the outcome" but disputes that the Panel Convenor said anything about the relieving work in that sentence.

• [47] With respect to the interview notes, the Appellant argues that the Panel ought to have not placed weight on the notes when reaching their decision because the notes were meant to be records for assisting memory and because the Respondent said they did not use the notes as a deciding factor.

• [48] The Appellant then raises another issue with the selection process. The Appellant argues that she did use all key words that the Panel was looking for in her application, even though the Panel said that all such key words were not used. Finally, the Appellant argues, irrelevantly for the purposes of this appeal in my opinion, that the successful applicant has commenced in the role, despite advice from human resources for the Respondent advising that a successful applicant is unable to commence in a disputed role until the appeal for that matter has been decided.

• [49] In its reply submission the Respondent first deals with the Appellant's argument on conflict. The Respondent argues that the nature of the conflicts within the first panel and within the Panel were quite different. In the first instance, one of the candidates was the cousin of the panel convenor's wife, while there were no familial connections for the Panel. The Respondent also notes that the first panel considered that the conflicts meant they could not remain unbiased, while the Panel considered that they could remain unbiased despite the declared conflicts around having worked with the candidates previously.

• [50] The Respondent then deals with the Appellant's argument that the Panel did not have sufficient subject matter expertise. The Respondent points out that experts in the nuances of the Rockhampton Prosecution Corps could not remain unbiased due to their close working relationships with the candidates. The Respondent submits that the Panel, while not what one might call "subject matter experts", still possessed the necessary knowledge of the duties of the Position. That is because they had either performed a similar role previously themselves or had experience as a prosecutor and an Officer in Charge. The Respondent attaches documentation of the Panel members' relevant experience supporting this submission. The Respondent reiterates that there is no requirement for a subject matter expert. The Respondent again points out that the Divisional Administration Officer position is not a specialist position and later notes that the position description was the same description as other roles of a similar nature, meaning this Divisional Administration Officer position was substantively the same as other Divisional Administration Officer positions in different areas. The Respondent argues in these circumstances that both members of the Panel had sufficient knowledge, skills and experience to understand the Position.

• [51] Furthermore, the Respondent notes that the Panel Convenor emailed all candidates advising them to let the Panel Convenor know if they had any issues with the Panel, and that the Appellant did not raise any objections to there being no subject matter experts on the Panel. However, the Respondent concedes that the Appellant could not have objected to the Panel based on who the other candidates were, as that information was confidential. The Respondent argues that the Appellant should have earlier raised the complaint now made about the make-up of the Panel when she was invited to do so. I surmise the contention here is that the Appellant's raising the issue only now indicates a lack of sincerity.

• [52] The Respondent also argues that it was an entirely reasonable course of action to ensure that they had regard to the Inspector for the area the Rockhampton Prosecutions Corps to clarify information.

• [53] The Respondent also responds to the Appellant's contention that a conflict rendering the Decision not fair and reasonable arose due to the Panel members having previously worked with the successful candidate. The Respondent points out that clause 12.2 of the Guidelines notes that the "mere fact that a panel member may have knowledge adverse to the interests of an applicant is not of itself a sufficient basis for the determining a reasonable basis of apprehension of bias". The Respondent argues that it is unreasonable to contend that the members of the Panel were dispossessed of the ability to remain objective just because they worked in the same office as another candidate.

• [54] The Respondent also accepts that although all Divisional Administration Officers and District Administration Officer roles share a common position code (GEN009) they do have different position descriptions. However, the Respondent does not accept that merely because they have different positions descriptions means they are substantially different. The Respondent instead submits that the position descriptions all contain the same substantive duties and functions, with the only differences between the position descriptions being in technical details such as location of the position.

• [55] In response to the Appellant's argument that she was unable articulate her extensive knowledge and experience, the Respondent submits that the Panel could only assess what was put before it and that it was fair to consider the Appellant's performance in the interview. The Respondent cites Williams in support of the proposition that performance in interviews is a valid part of an assessment of the suitability of candidates and is not a deficiency in the recruitment process.[38]

• [56] The Respondent also argues that the interview was not used against the Appellant, as the Appellant was in fact deemed suitable.

• [57] The Respondent further submits that the Panel was entitled to consider the Appellant's notes as the Panel considers everything before it. The Respondent also notes that the Appellant did not provide the key words and so the Respondent is unable to confirm or deny the Appellant's claim that she used every key word. And in any case, the Respondent argues, the notes and keywords were not deciding factors but simply one component of the selection process.

• [58] The Appellant argues that the Panel Convenor had been a prosecutor for "only a short period of time" being four years between 2008 and 2012. The Appellant submits that this means the Panel has not been involved in prosecutions for a considerable amount of time since 2012. Consequently, so the Appellant's argument goes, the Panel Convenor has lost sufficient knowledge, skills and experience to thoroughly understand the Position.

• [59] The Appellant also argues that the Panel Member lacked relevant experience. The Appellant submits that the Panel Member has only been employed by the Respondent for a short period of three years, and that whilst holding several different administrative roles, the Panel Member was never employed within prosecutions or in legal. The Appellant argues therefore that the Panel Member lacked sufficient knowledge, skills or experience in the Position.

• [60] The Appellant clarifies that she is not arguing that the previous panel members having worked with candidates constitutes an actual conflict of interest. Rather, the Appellant argues that such a history has the potential to give rise to a reasonable apprehension of bias. The Appellant contends that in these circumstances, she held a reasonable apprehension of bias because the Panel composition was not properly managed.

• [61] Replying to the Respondent's submission that all Divisional Administration Officers are substantially the same because all positions have the same code GEN009, the Appellant submits that that is not so. Rather, the Appellant says, each Divisional Administration Officer role has different key accountabilities and assessment details, with its own position descriptions. The Appellant submits that the title GEN009 is a proforma title.

• [62] Finally, the Appellant responded to the suggestion that she should have objected to the composition of the Panel when she was invited to rather than waiting until after the Decision had been made. The Appellant argues that the obligation is upon panel members to properly raise conflicts and also deal with the potential for perceived conflicts in the same fashion. The Appellant argues that she may not have been in a position to challenge the composition of the Panel or "may have good reasons for refraining from doing so while a recruitment process was underway". I construe that submission to be implying that the Appellant may have held concerns at the time but chose to keep those to herself for fear of jeopardising the process, or at the very least, to see how the process went and if she was unsuccessful, take the issue up later. The submission is not developed.

• [63] In its final submissions the Respondent addresses the Appellant's contention that the Panel Convenor had lost his knowledge, skills and experience by virtue of not having worked in prosecutions for an extended period of time. The Respondent first notes that there is no temporal requirement on when the Panel Convenor must have obtained their knowledge, skills and experience, or how long they must have had such knowledge, skills and experience. The Respondent then notes that the duties of the Position are administrative in nature, and that police officers also perform roles that can be administrative in nature. The Respondent then points out that the Panel Convenor has been a police officer containing an administrative component in various roles for twenty four years, with accompanying position descriptions attached to show the various administrative key accountabilities. The Respondent argues in these circumstances that the Panel Convenor had not lost their knowledge, skills and experience.

• [64] As to the Appellant's argument that the Respondent failed to comply with clause 9.8 of Directive 07/23, the Respondent says that the Appellant has failed to articulate just how the Respondent has done so. The Respondent relies on its previous submissions for why the Panel did properly manage any conflicts. The Respondent also submits that the previous panel withdrawing demonstrates that the Respondent did in fact comply with Directive 07/23.

• [65] The Respondent also refutes the Appellant's assertion that every Divisional Administration Officer position has its own position description. The Respondent acknowledges that each individual position has its own unique position number, but says that this number is only for administrative purposes. The Respondent reiterates the argument that Divisional Administration Officer roles are substantially the same across the organisation.

• [66] Furthermore, the Respondent acknowledges the Appellant's observation that the core competencies of the Position are "to supervise, train and mentor staff, research and review people management issues, maintain leave systems and provide high level support and advice to officer in charge". The Respondent attaches the key accountabilities of the positions that the Panel Convenor held, including that he was an officer in charge, to contend that Panel possessed the requisite knowledge, skills and experience.

• [67] Finally, the Respondent responds to the insinuation by the Appellant that her chances of winning the Position would have been harmed if she had objected to the Panel composition. The Respondent contends that this argument is insufficiently particularised and developed, and so it would unfairly prejudice the Respondent to hear this argument. The Respondent argues the Commission should not entertain the argument. The Respondent also points out that the Appellant was, in any case, found to be meritorious.

• [68] The Appellant raises a number of grounds of appeal that can be summarised as:

(b) the feedback revealed that the Panel Convenor did not know the Appellant had been acting in a relief role for the Position;

(c) the Appellant's interview ability was unfairly used against her;

(d) the successful applicant's more proficient use of "Objective" was an unfairly decisive factor in the Decision; and

(e) there was a perceived conflict between the panel members and the successful applicant.

• [69] I accept the Respondent's submission on this point that there does not need to be a subject expert on a selection panel. However, a selection panel obviously must be possessed of sufficient relevant experience in the nature of the work in question for it to be able to adequately assess candidates. Any panel for the Position needed a general understanding of how the Position works with police prosecutions.

• [70] In arguing that the Position was more a specialist role, the Appellant claimed that there are differences in each Divisional Administration Officer position, which the Panel failed to appreciate. The Appellant points to the different position numbers for each GEN009 position description ('PD') as evidence that these positions are all different. However, I accept what the Respondent says on this point. True, the Divisional Administration Officer positions are attached to PD number GEN009, and there are in fact 64 different positions for that PD, creating unique position numbers. However, the purpose of these position numbers is to provide each employee with their own position number. It is an administrative measure and not indicative of the kind of unique and nuanced differences in the positions that the Appellant asserts.

• [71] I accept the Respondent's submission that these positions, though not identical, are "substantially" the same in that there are similar core functions shared among these positions, as evidence by the PD. I acknowledge that every position has its own unique quirks. However, I find that there is nothing substantial enough to differentiate the Position from the litany of other AO4 roles or to make the Position a specialist AO4 role. I therefore do not accept that the Position is a specialist one.

• [72] Between the two members on the Panel, there was more than enough expertise. The Panel Convenor had experience as a prosecutor and an Officer in Charge, and the Panel Member had performed a role similar to the Position. I am satisfied that the Panel Convenor was experienced in the legal areas that the Position supported, and that the Panel Member was experienced in the administrative elements of the Position. Both were experienced in the leadership, mentoring and training aspects of the Position.

• [73] In coming to that conclusion, I reject the Appellant's submission that the Panel Convenor's experience of four years as a police prosecutor concluding in 2012 renders the Decision unfair and unreasonable for lack of current experience. On my assessment, the Panel Convenor held sufficient relevant expertise as a Prosecutor. That experience of four years is significant in my opinion. Perhaps if it was a one-month stint that occurred twenty years earlier, I might agree with the Appellant on this point. However, the experience of 4 years as a full-time police prosecutor is not something that would be easily forgotten. I also do not have any evidence before me to support the submission that the work and administration around police prosecutions has changed so dramatically since 2012 that the Panel Convenor would no longer hold relevant experience.

• [74] Further to this point, I also do not accept the Appellant's argument that the Panel Member's experience of three years in several administrative roles, none of them within prosecutions or legal, amounts to deficiency of expertise. Doubtless, there will be some unique elements to the local daily functions of the Position due to its specific location. But I cannot accept that not working previously in that specific area renders the Panel Member incapable of fairly and reasonably weighing up each candidate's relevant skills and abilities towards concluding a view as to potential competence in the Position. That is especially so when one considers that the Panel worked together to combine their experience when selecting who should fill the Position. I find that there was a bringing to the task of both members' experiences and skills in relevant areas. There was the Panel Convenor's legal and related administration experience along with managing others and the Panel Member's experience in the administrative functions that were a part of the Position.

• [75] I am also persuaded by the decision in Cleary noted above. In it, McLennan IC rejected the submission that a promotion decision was not fair and reasonable because the panel members had not worked in a similar role in the relevant unit or a role with similar responsibilities. The members of the Panel having experience in the exact role in question is of value, but if that is not present, that does not by itself render the selection process defective.[39]

• [76] Based on the facts before me, I do not accept the Appellant's claim that the Panel lacked sufficient experience or expertise. This ground of the appeal therefore fails.

The feedback about acting in a relief role for the Position

• [77] Feedback is something that the Respondent makes available to unsuccessful candidates. Arguments that the feedback in a particular case was not specific enough or not useful enough are irrelevant. As Power IC observed in Bayntun, whether an appellant thinks that feedback is inadequate is not grounds for deciding if a selection decision was fair and reasonable.[40]

• [78] Beyond the adequacy or usefulness of feedback, the Appellant claims that through the feedback she became aware that Panel Convenor did not consider crucial aspects of the Appellant's application. More specifically, the Appellant says that the Panel Convenor did not appear to know whether, or attribute appropriate weight to the fact that, the Appellant had been acting in a relief capacity in the Position for as long as she had. The Appellant contends that such a lack of knowledge of this key part of the Appellant's application meant the Decision was not fair and reasonable.

• [79] However, the evidence shows that the Panel Convenor did know about the Appellant acting in this relief capacity. In the materials before the Commission are documents titled "Panel Interview Questions". They were prepared for the purposes of the Appellant's interview for the Position. They are mentioned above and referred to as "notes". They contain three questions about different relevant skills and demonstrated abilities. Under each question there is a number of lines for writing responses. The Appellant prepared her own written responses. The Panel Convenor and Panel Member also had their own blank copy of this document and each made their own hand-written notes to the response given during the Appellant's interview.

• [80] Question 1 dealt with being required to supervise, train and develop staff as the AO4 Divisional Administration Officer and asked candidates how they would integrate new staff into their team using examples. The Appellant's first note in response to question 1 reads "currently A/AO4 supervising 2 staff". The Panel Convenor's first note in response to question 1 reads "currently sharing AO4 - supervising two staff - currently one". The Panel Member's first note in response to question 1 reads "sharing acting AO4 role in pros [prosecutions]. Whilst acting. Supervising training and upskilling sta[ff]". Based on this evidence, I find that the Appellant's acting as relief in the AO4 role within prosecutions was discussed during the interview. I find it implausible that the Appellant would have done so and failed to also mention how long she had been working in that relieving role. This leads me to find that the Panel Convenor's account is to be preferred and that he did know at the relevant time that the Appellant had been acting as relief in the AO4 position within prosecutions since September 2023.

• [81] However, it would not be of much significance if the Panel Convenor did not know that the Appellant had been acting in a relief capacity. As Caddie IC observed in Clark, what matters is whether the panel has assessed the applicant's ability to perform the role.[41] There is no requirement to consider previous employment.[42]

• [82] Based on my findings above, this ground of appeal also must fail.

• [83] The Appellant argues that her inability to articulate her responses and use the entire time allotted were unfairly used against her. The Appellant further argues that the fact she had time left unused was irrelevant.

• [84] This ground of appeal is somewhat misdirected by alleging that the Decision was unfairly influenced by the Appellant not using up all her allotted time in the interview. I do not construe the Panel members to have marked the Appellant down simply because she finished her interview early. Rather, I find that the fact the Appellant had finished her interview early was part of the assessment that her interview was less persuasive than the successful applicant's. As part of the submissions in reply to this appeal, the Respondent submits that the successful applicant comprehensively and persuasively conveyed how her skills, abilities and relevant experience would make her the ideal candidate for the Position. Conversely, the Respondent submits that the Appellant, although adequate, was not nearly as persuasive or comprehensive in her interview. I accept those submissions. Consequently, I find that the use of interview time was a consideration reinforcing the conclusion that the successful applicant's interview was more persuasive than the Appellant's. There is nothing on the evidence to suggest that the use of interview time was unfairly weighted in reaching that conclusion.

• [85] To the extent that this ground of appeal claims that the Appellant's interview ability was rated in any way, and that that caused the Decision to not be fair and reasonable, that must be rejected. There are two reasons for this. Firstly, I do not accept that that is in fact what occurred. The Respondent only raised this point in its submissions responding to the claim by the Appellant that her interviewing skill was unfairly assessed. There is no evidence proving that interview technique, as a skill on its own, was actually part of formally grading the candidates. Secondly, I am influenced by two very pertinent decisions by Pidgeon IC stating the relevant legal principles. In Williams and Clare it was found that considering interview ability as part of the selection process and holding poor interviewing skills against the interviewee does not render a decision less than fair and reasonable. And so, even if the Panel did use the Appellant's interview ability against her, which I do not accept, there was nothing about doing so that rendered the Decision less than fair and reasonable. This ground of appeal therefore fails.

• [86] The Appellant asserts that the Panel Convenor's reference during the feedback session to the successful candidate's proficiency in the Objective computer software proves that such proficiency was a deciding factor in the Decision. I reject that assertion. A mere reference to some consideration made during the decision-making process during the feedback session does not indicate what degree of reliance was placed on that consideration in the Decision itself. Considering all of the facts, it appears that the only decisive factor for the Decision was that the successful candidate's interview was overall markedly more persuasive than the Appellant's. I accept the Respondent's submission that the use of the Objective software was a consideration, but it was far from being a decisive one. It appears that the successful applicant's superior grasp of the Objective software was a footnote in the decision-making process. Consequently, this ground of the appeal must also fail.

• [87] The Appellant has made it clear that her argument on this point is not that there was an actual conflict. Rather, there was a perceived conflict; the perception of bias to be specific. The perceived bias is said to have arisen from the successful candidate working in the same area as both of the panel members. The gist of that argument is that a reasonable person might perceive that the Panel favoured the candidate whom they knew and had a working relationship with over the Appellant who was a stranger to them.

• [88] The Appellant points out that the two panel members comprising the earlier version of the Panel withdrew due to having a relationship or friendship with some of the candidates. The Appellant argues that the Panel should have been constituted by persons who had no working relationship with any of the candidates.

• [89] I cannot accept the submission that just because the earlier panel members felt conflicted in assessing applications from employees with whom they worked, means that the Panel members should have done likewise. Each working relationship is unique. Some are close. Others little more than an acquaintance or mere awareness. It depends on the roles, the people, the size of the organisation, the nature of the work and a great many other variables. Exactly why each one of those previous panel members withdrew is not in evidence. One cited a familial relationship, however that is not relevant to the current argument. What is relevant is the nature of any friendship arising from having a close working relationship. Clearly, there was a belief held by each previous panel member that impartiality may have been impacted due to the relationship with one or several candidates. But exactly why that was so is not in evidence. I cannot therefore accept that whatever those members' (unknown) reasons for withdrawing were applied as a rule to the Panel Member and Convener.

• [90] I am also mindful of the case in Henning where her Honour, Hartigan DP, found that working with the successful applicant does not, by itself, establish a conflict of interest. So too, Pidgeon IC observed in Williams that it is not unusual for people on selection panels to work alongside candidates and that the relevant conflict management systems are there to deal with the perception of bias as well as actual bias. In this case the potential conflict was declared and the Superintendent approved of the Panel.

• [91] Dwyer IC dealt with the issue of perceived bias in a recruitment and selection process being appealed in Wyer. Dwyer IC acknowledged that the existence of a professional relationship alone does not point to a conflict of interest. There has to be something more than that to constitute a reasonable perception of bias that would cause a selection decision to be less than fair and reasonable. In that case there was much more than just a professional relationship between three of the four panel members and the successful candidate. Dwyer IC found it "incredible" that the panel in Wyer decided to not even interview the appellant, or anyone other than the person who three of the panel members had a working relationship with. What made that situation even more incredible was the fact that there was only four candidates vying for the position, which was not in need of an urgent replacement. It was also significant in Wyer that several of the appellant's colleagues lodged a grievance containing serious allegations about the person who was ultimately appointed. The respondent did not even consider that grievance, let alone investigate it, for "technical" reasons. Dwyer IC reflected that his view might have been different if the appellant had been interviewed. Were that the case, Dwyer IC reasoned that he would have been less inclined to reach the conclusion that a reasonable perception of bias caused the decision to be unfair and unreasonable.

• [92] I acknowledge that the Appellant was a strong contender for the Position and a competent administrator. The Appellant was also acting in the Position and considered that to be valuable experience and demonstrative of being able to perform the Position. None of that was incorrect on the Panel's assessment. However, in my opinion, it was open on the evidence before the Panel to prefer the successful candidate over the Appellant. The Appellant argues that there was an objectively reasonable perception of bias that causes the Decision to not be fair and reasonable. I cannot agree. This case is not like the one Dwyer IC dealt with in Wyer. In this case the Appellant was interviewed and scored well. Her application was properly assessed and her competence acknowledged. In Wyer, the appellant's application was not even assessed and his competence was ignored. I am satisfied that the Appellant's assertions as to unfairness do not to bear scrutiny for the reasons I have set out above. Accordingly, I find that the appeal ground concerning conflict fails.

• [93] There were submissions from both sides as to whether the Appellant should have objected to the composition of the Panel when she was notified that it would contain the Panel Convenor and the Panel Member. Those arguments are not relevant to the resolution of this appeal. Whether the Decision was fair and reasonable does not turn on when the Appellant decided to take issue with the matters she has raised through this appeal process.

• [94] The Appellant argued that the Respondent's use of the notes made during the interview was unfair because the notes were for the Appellant's personal use only. I do not see that as a relevant argument in an appeal of this nature. The notes were clearly evidence of what each person who was involved in the interview recorded as being said. That was a key issue that the Appellant took up in this appeal. The notes were clearly relevant evidence which assisted in resolving the issue as to whether the Appellant's relieving experience was discussed in interview.

• [95] As to whether the Appellant used all of the "key words" in interview, I am not persuaded that this was a critical reason for the Decision, even if I were to accept the Appellant's argument. Resolving whether all of the key words were used will not have any material impact on the determination of this appeal in my opinion. That is because I accept the Respondent's submissions that the Panel relied appropriately on the evidence before it, including how the Appellant spoke, and what she said, during interview, when weighing up who to award the Position to.

• [96] The Panel composition was not lacking in relevant expertise and it gave appropriate Feedback. The feedback does not reveal any consideration by the Panel that was improper or wrongly weighed. The perception of bias argument is rejected. The Decision was, in my opinion, fair and reasonable. I dismiss that Appeal and order that the Decision is confirmed.

[1] [2022] QIRC 16.

[3] [2025] QIRC 8.

[4] Ibid [35], with citations omitted.

[5] [2022] QIRC 408 ('Wyer').

[6] Wyer (n 5) [84]-[88], [91], [93].

[10] [2022] QIRC 487.

[13] Henning v State of Queensland (Queensland Treasury) [2023] ICQ 009, [34].

[15] [2024] QIRC 6 ('Williams').

[21] [2022] QIRC 416 ('Cleary').

[24] [2022] QIRC 361 ('Bayntun').

[27] [2024] QIRC 84, [68].

[30] [2024] QIRC 112 ('Clark').

[32] Clark (n 30) [65]-[66], referring to the Public Sector Act 2022 (Qld), s 45.

[33] [2022] QIRC 492.