Anthony v Commissioner of the Queensland Police Service [2022] QSC 124 [2022] 27 QLR

SUPREME COURT OF QUEENSLAND CITATION: Anthony v Commissioner of the Queensland Police Service [2022] QSC 124 PARTIES: NATASHA ANTHONY (applicant) v COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: BS 6851 of 2021 DIVISION: Trial Division PROCEEDING: Hearing ORIGINATING COURT: Supreme Court of Queensland DELIVERED ORALLY ON: 30 May 2022 DELIVERED AT: Brisbane HEARING DATE: 30 May 2022 JUDGES: Callaghan J ORDERS: 1. The application is allowed; 2. The respondent’s decision of 18 May 2022 is set aside; 3. Pursuant to s 30(1)(d) of the Judicial Review Act 1991 (Qld), the respondent is directed to confirm the appointment of the applicant to the position of Officer in Charge, Brisbane City Station; and 4. The respondent is to pay the applicant’s costs. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant was assessed as the first-placed candidate for an appointment as Senior Sergeant, Officer in Charge – where the applicant chose the position at the Brisbane City Station – where another candidate applied for review of the decision to appoint the applicant – where as a result of the review process, it was recommended that the appointment of the applicant be set aside and the applications for the position reconsidered in a way that avoided the identified problems – where the respondent decided that the applicant’s appointment was to be set aside and the position re-advertised – where the appointment of another candidate through the same process to -- 1 of 8 -- 2 the same position at Hendra Station was not disturbed – whether the respondent’s decision was legally unreasonable ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the Commissioner for Police Service Reviews Recommendation (Review Report) was received by the applicant and the respondent – where the respondent was required to give consideration to the “matter reviewed” and have regard to the Review Report before taking such action as appeared “just and fair” – whether the respondent failed to give the applicant a fair opportunity to be heard before making a decision Police Service Administration Act 1990 (Qld) ss 9.2A, 9.3, 9.5 Judicial Review Act 1991 (Qld) s 30(1)(d) COUNSEL: M Black for the applicant M R Wilkinson for the respondent SOLICITORS: Gnech & Associates for the applicant QPS Legal Unit for the respondent [1] In June 2020, the position of “Officer in Charge” was vacant at both the Brisbane City and Hendra Police Stations. These vacancies were advertised and the applicant in these proceedings, Sergeant Anthony, was one of 63 police officers who submitted an application in response. [2] The applications were considered by a selection panel. Unfortunately, for the purposes of their deliberations this panel used some “key performance indicators” (KPIs) that were not identified when the positions were advertised. All 63 candidates for the positions are likely to have been affected in the same way by this flaw in the process. It is accepted, however, that the process was otherwise undertaken diligently. [3] That process concluded with Sergeant Anthony being assessed as the first ranked candidate according to merit. This ranking entitled her to the first choice as between the vacant positions. She chose – and in October 2020 was appointed to – the position of Officer in Charge of the Brisbane City Station. Another, lower ranked, candidate was appointed to and took up the position of Officer in Charge at Hendra. [4] In November 2020, a candidate who had been unsuccessful – and who had not in fact even been included on the shortlist of 10 candidates who were considered for interview and further assessment in the selection process – applied for a review of the decision by which Sergeant Anthony was appointed. His entitlement to do so was conferred by s 9.3 of the Police Service Administration Act 1990 (Qld) (the Act). That section provides for such a review to be conducted by a Commissioner for Police Service Reviews (Review Commissioner); the holder of such a position does not sit within the QPS – see s 9.2A of the Act. -- 2 of 8 -- 3 [5] The review process itself is described in the Act as an “administrative proceeding of a non-adversarial nature”. It concludes with the Review Commissioner making a recommendation to the Commissioner of the Queensland Police Service (Commissioner of Police). The recommendation is not binding. The functional decision remains one for the Commissioner of Police herself. It is to be made pursuant to s 9.5(2) of the Act upon consideration of the matter reviewed and having regard to the recommendations made. The Commissioner’s statutory charter under that provision is then to take such action as appears to her to “to be just and fair”. [6] Both the disaffected candidate and the applicant made submissions to the Review Commissioner. It does not appear that either was aware of the issue with the KPIs – at least, neither raised any concern about them in their submissions. The Review Commissioner, however, concluded in her report (the Review Report) that: “The use of the KPIs developed by the panel in this case is unfair and unjust and constitutes a flawed process.” [7] It followed, according to the Review Commissioner, that the assessment of the disaffected candidate’s application was not fair. It was also found that all candidates for the positions were likely to have been “similarly impacted” by the same flaws. And as noted, it was also allowed by the Review Commissioner that the panel had undertaken the task of recommending the meritorious candidate “diligently”. The chair of the selection panel impressed the Review Commissioner, who described him as “very thoughtful and conscientious”. The Review Commissioner expressly stated that she was making no assessment as to the relative merits of the candidates. Nevertheless, her recommendation was that the applicant’s appointment should be set aside and that: “…applications for the position be reconsidered in a way that avoids the problems identified.” [8] The circumstance of a lower ranked candidate having been appointed and confirmed as part of the same process was not considered in the Review Report. [9] The chair of the selection panel prepared a report in response to the Review Report. He pointed out that the appointee to the Hendra position had taken up his position and that there was “no apparent industrial instrument” that allowed for his appointment to be revisited. It was noted that the Review Report was silent on the matter of the Hendra position and offered no recommendation or remedy as to how that situation should be addressed. [10] It was also observed that: “Sergeant Anthony now finds herself at significant disadvantage for displaying the greatest merit in the selection process. An officer found to have displayed a lower standard of merit has been promoted and is not under review.” [11] It was further observed that this was a “clearly unfair outcome”. [12] The author of this document thought, apparently mistakenly, that any review of the process by which Sergeant Anthony was appointed should “by definition” have been against both appointees. That was not the case. Under the Act, the disaffected -- 3 of 8 -- 4 candidate was entitled to challenge, in isolation, the appointment of Sergeant Anthony. [13] The concerns expressed in this report were picked up in a further report authored by the Senior Sergeant of “Police Service Reviews” (the Police Report). After rehearsing the history of the matter, the author of this report went on to provide two options. First, it was proposed that it was open to the Commissioner of Police to confirm Sergeant Anthony’s appointment as Officer in Charge of the Brisbane City Station. In support of exercising this option, it was noted that the flaws identified by the Review Commissioner were systemic in nature and that all candidates were equally affected by them. It was also noted that there was no suggestion of any impropriety on the part of the selection panel which “conscientiously followed” QPS policy. [14] Alternatively, it was allowed that consideration could be given to setting aside the applicant’s appointment and directing that the position be re-advertised such that the selection process could be conducted afresh and unaffected by the flaws identified by their Review Commissioner. I interpolate that the notion of re-advertising the vacancy had not been contemplated at any prior point in the proceeding. The author of the Police Report also suggested that a copy of it ought to be provided to the applicant and to the disaffected candidate “to ensure natural justice and procedural fairness”, and to allow them to make further submissions to the Commissioner of Police prior to her making “the ultimate decision”. [15] That “ultimate decision” had to be made by the Commissioner of Police pursuant to s 9.5(2) of the Act which reads: “The commissioner of the police service, upon consideration of the matter reviewed and having regard to the recommendations made, is to take such action as appears to the commissioner of the police service to be just and fair.” [16] The only “matter” being reviewed was the applicant’s appointment. It was not open, as part of this decision for the Commissioner of Police, to do anything about the Hendra position. It is also accepted that for the purposes of making her decision, the Commissioner of Police was provided with copies of the three reports I have mentioned above. [17] The respondent made her decision on 18 May 2021. She noted the Review Report’s recommendation that the applicant’s appointment be set aside on the basis that the selection process was flawed and that the way in which the committee had used KPIs was considered by the Review Commissioner to be “unfair, unjust and contrary to sound personnel management practices”. The respondent also “noted” that a second appointment was made from the same process for the position of Officer in Charge at the Hendra station and that this appointment was not subject to review. In fact, it had been confirmed. The respondent went on to record that after careful consideration: “…the recommendations [of the Review Report] should be accepted and the appointment of Sergeant Anthony be set aside. Due to the length of time that has passed since the position was advertised, I direct that the position be re-advertised with a new panel to undertake the selection process.” -- 4 of 8 -- 5 [18] The applicant challenges that decision by way of an application for a statutory order of review. It is said in the first instance that the respondent’s decision was “legally unreasonable”. The difficulty in impugning a decision on this basis is well understood. Applicable principles have, with respect, been summarised lucidly in [17] to [27] of the respondent’s written submissions and ably presented in argument by Mr Wilkinson. [19] His submissions distil the effect of authorities that emphasise this is not a review in which I could substitute my own view of the correct or preferable decision for that which was made by the Police Commissioner. Before any interference could occur, it would need to be found that there was something about her decision that was “clearly unjust”, “obviously disproportionate”, or that it was “lacking in an evident and intelligible justification”. In order to establish whether the decision had any of those characteristics, regard must first be had to terms, scope and purpose of the statutory power that was being exercised when the decision was made. [20] In this case, the terms of s 9.5(2) of the Act require the Commissioner of Police to make a decision that was “just and fair”. No definition of that term is supplied by the Act. According to their well-understood meaning, those words required the decision to be made in a way that was free from bias but was also equitable, based on right, and actuated by truth and justice. The discretion was not circumscribed in any other way and in particular, not by the Review Report – although it remained something to which the Commissioner of Police was required to “have regard”. The respondent therefore allowed that the option of affirming Sergeant Anthony’s appointment had been open to her if it was the “just and fair” outcome in the circumstances but maintained, correctly, the decision to set aside the appointment was reviewable on this ground only if it was the sole reasonable outcome permitted by those same circumstances. [21] The circumstances in this case included what seems to have been an unusual constellation of factors, namely: (a) the applicant was appointed on merit to an important position; (b) according to the merit assessment performed, the applicant enjoyed an identifiable advantage over the candidate who initiated the review of her appointment; (c) there was no suggestion of any impropriety on the part of the panel that appointed the applicant. On the contrary, they applied themselves “diligently”; (d) indeed, as noted, the chair of the panel impressed as “thoughtful and conscientious”; (e) such flaws in the process that led to the applicant’s appointment of being set aside were “systemic” and were likely to have affected all candidates – including both the applicant and the disaffected candidate – equally; and (f) out of exactly the same process that led to the applicant’s appointment, another candidate was appointed to a comparable position in the Queensland Police Service. [22] That last anomaly has been identified but no one has suggested that it presents as intolerable. That is, no one suggests that the flaw in the process by which the Officer -- 5 of 8 -- 6 in Charge at Hendra was appointed casts any shadow on the legitimacy with which he holds his position. And yet, the only reason why it was recommended that Sergeant Anthony’s appointment be set aside was equally applicable to him. In sum, a better qualified candidate has on merit, been appointed to a position after a process which, although flawed, conferred on her no advantage over other candidates. By reason of a process initiated by someone who was not considered even close to being in contention for the same position, her appointment has been set aside in circumstances where another police officer has secured his comparable position as part of the same process. [23] That situation is one that does create an impression of arbitrariness. The question is, however, whether it was open for the Commissioner to see it differently. It is not sought to review her decision on the basis of the reasons given. They were, in any event, spare. Nevertheless, if they provided an evident and intelligible explanation for the decision, the applicant could not succeed. [24] In this case, however, the reasons given provide no obstacle in the path of reasoning towards the conclusion that is otherwise necessarily to be drawn from the aforementioned constellation of factors. To the extent that the reasons adopt the recommendation in the Review Report, the basis for them is “evident”, however they are not, in the context of the decision that had to be made, “intelligible”. [25] That is, whilst the recommendation in the Review Report is “noted”, the force of its conclusion is not endorsed for any particular reason. The Hendra anomaly is also “noted”, so it must be allowed that the respondent appreciated it was a relevant consideration. There was, however, no engagement with its significance nor any attempt to rationalise the tension between that situation and the applicant’s. There is, in the reasons, no reference at all to the relative merit of the candidates. [26] As noted, an assessment of merit played no part in the Review Report and there is no suggestion it found its way into the processes via a different route. It might be thought that in these particular circumstances any decision that was truly “just and fair” would at least take relative merit into account in a meaningful way – or provide a reasoned explanation for a failure to do so. If that explanation was to be that the flaws in the process was so egregious as to have produced a totally unacceptable outcome, then a truly equitable process would have at least identified the challenge then posed by the Hendra appointment, even if only to acknowledge that such things can happen and that an imperfect situation had been created. That did not occur. [27] Indeed, apart from noting their presence in the Review Report, the words “fair” and “just” did not appear in any other part of the Commissioner’s reasons. These concepts had to be at the epicentre of the decision she was making. [28] I emphasise that the significance of deficiencies in the reasons given by the respondent is limited. Those deficiencies do not, of themselves, mandate a conclusion as to unreasonableness. All they mean is that attention reverts to the outcome and the question as to whether a conclusion as to error can be drawn from it. The outcome was one that, with respect, rightly reflected concern for process. A failure in process will, in some circumstances and without more, vitiate an administrative decision. However, the decision to be made by the respondent called for her to embark upon an inquiry that included, but was wider than, one which examined the processes involved. -- 6 of 8 -- 7 [29] Any conclusion as to whether an action is “just and fair” will involve the synthesis of considerations that can be numerous and may compete with each other. If the need for concern about process to prevail cannot be demonstrated – or at least readily appreciated – it may have to yield to other of those considerations that are self- evidently equitable. That process of synthesisation does not appear to have happened in this case and it can be said the same conclusion could not have been reached if it had been performed. The specific flaws involved were disproportionately minute compared with the other factors which were engaged. In all of the unusual circumstances of the case, common sense in the result cannot be discerned. It follows that the respondent’s decision should be set aside. [30] The unique circumstances mean that this is one of those rare cases in which it is open to act under s 30(1)(d) of the Judicial Review Act 1991 (Qld). Having concluded that the applicant should succeed on her primary ground, the situation is in practical terms a binary one. Once the respondent’s decision is set aside for the reasons given, its replacement with a decision that the applicant’s appointment should be confirmed is axiomatic. There is, at that point, no “residual judgment” to be exercised or “decisional freedom” to be endured. It should be recorded that this is not a case where, by ordering a specific result, it can be thought that the Court is deciding on the merits, a matter that is “outside its province” and that it is ill-equipped to decide. The merit of the applicant has been determined by a panel that was well-equipped to do just that. [31] The order to be made is simply a reflection of the fact that on the uncontested facts the applicant was the most meritorious candidate for the position and the effect of the Court’s decision is that there is no reason why the decision to appoint the applicant should have been set aside. [32] It is not necessary to consider it, but I would also have allowed the application on the basis that there was a breach of the requirements of natural justice. In resisting the argument brought under this heading, the respondent points out that the applicant had procedural fairness as part of the process before the Review Commissioner. That is, however, of limited relevance when the functional decision was the one that was made by the Commissioner of Police. The fact that the author of the Police Report thought a copy of it should be provided to the applicant in order to serve the interests of procedural fairness is of course, not decisive. It is a matter for me to decide what was required in the circumstances. But that suggestion was at least a clue. [33] The decision to be made by the Commissioner of Police was one that was required to be “just and fair” and in those circumstances, the applicant was entitled to make representations about all of the material that was before the respondent. In particular, she was entitled to be heard on the question as to whether or not the position should be re-advertised as opposed to reconsidered on the basis of applications already received. Success on this ground alone would not have been rewarded with an order under s 30(1)(d) of the Judicial Review Act 1991 (Qld), but I do not need to consider the relief that would have been appropriate under this heading. [34] The orders of the Court will be that: 1. The application is allowed; 2. The respondent’s decision of 18 May 2022 is set aside; -- 7 of 8 -- 8 3. Pursuant to s 30(1)(d) of the Judicial Review Act 1991 (Qld), the respondent is directed to confirm the appointment of the applicant to the position of Officer in Charge, Brisbane City Station; and 4. The respondent is to pay the applicant’s costs. -- 8 of 8 --