Biddle v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 283

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Biddle v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 283 Biddle, Andreas (Appellant) v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (Respondent) CASE NO: PSA/2021/214 PROCEEDING: Public Service Appeal – Disciplinary Decision DELIVERED ON: 17 August 2021 MEMBER: HEARD AT: ORDERS: McLennan IC On the papers Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. CATCHWORDS: LEGISLATION & OTHER INSTRUMENTS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against disciplinary decision – whether decision was fair and reasonable – whether procedural fairness afforded to appellant – consideration of 'balance of probabilities' – where decision was fair and reasonable – decision appealed against confirmed Code of Conduct for the Queensland Public Service (December 2010) cl 1 -- 1 of 40 -- 2 CASES: Department of Youth Justice, 2 December 2019, YD-3-1 Youth Detention - Duty of care obligations to staff and detained young people Department of Youth Justice, 2 December 2019, YD-3-2 Youth Detention - Duty of care considerations for youth detention operational staff involved in violent or potentially violent incidents Department of Youth Justice, 2 December 2019, YD-3-4 Youth Detention - Protective actions continuum Directive 14/20 Discipline cl 7, cl 8, cl 14 Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564, s 567 Public Service Act 2008 (Qld) s 3, s 25, s 187, s 194, s 195 Youth Justice Regulation 2016 (Qld) s 16 Ambrey v Oswin [2004] QSC 224 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barker v Queensland Fire and Rescue Authority (2000) QSC 395 Briginshaw v Briginshaw (1938) 60 CLR 336 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Coutts v Close [2014] FCA 19 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Lamb v Redland City Council [2014] QIRC 41 -- 2 of 40 -- 3 Motlap v Workers' Compensation Regulator [2020] QIRC 196 Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39 Reasons for Decision [1] Mr Andreas Biddle (the Appellant) has been employed with the Department of Children, Youth Justice and Multicultural Affairs ('the department') since 17 July 2017.1 [2] While his substantive position is as a Detention Youth Worker ('DYW') at the Brisbane Youth Detention Centre ('BYDC'), Mr Biddle was acting in higher duties as Acting Section Supervisor ('A/SS')2 between 13 May 2019 and 17 January 2021.3 [3] Three separate incidents occurred in the period from 24 February 2020 to 4 May 2020 with respect to Mr Biddle's interactions with Young Persons ('YPs') that gave rise to the department determining to commence a disciplinary process against him. [4] Four allegations were put to Mr Biddle in correspondence from Mr Darren Hegarty, Senior Executive Director, Youth Detention and Operations ('the delegate')4 dated 9 December 2020 ('the Allegations Letter').5 [5] Mr Biddle was invited to provide a written response as to why disciplinary findings should not be made against him in relation to those allegations. [6] Mr Biddle was also offered an opportunity to view the CCTV and BWC footage of the incidents in the Allegations Letter. On 16 December 2020, he viewed the CCTV footage with his union representative.6 [7] Mr Biddle responded to the allegations in a document dated 18 December 2020 ('the Response Letter').7 1 Respondent's submissions filed 30 June 2021, 1 [1]; Email correspondence from Ms Kieran Wong, Senior Business Partner, Business Partnerships South, Employee and Industrial Relations, People and Culture, Department of Children, Youth Justice and Multicultural Affairs to the Industrial Registry dated 6 August 2021. 2 Respondent's submissions filed 30 June 2021, 1 [3]. 3 At classification level 005. 4 Now Assistant Chief Operating Officer, Youth Justice, Statewide Services, Operations and Commissioning. 5 Correspondence from Mr Darren Hegarty, Senior Executive Director, Youth Detention and Operations to Mr Biddle dated 9 December 2020 ('the Allegations Letter'). 6 Email correspondence from Ms Kylie Walden, Director, Employee and Industrial Relations, People and Culture, Department of Children, Youth Justice and Multicultural Affairs to the Industrial Registry dated 16 June 2021. 7 Document titled Biddle, Andreas Response to NTSC Allegations: dated 18 December 2020 ('the Response Letter'). -- 3 of 40 -- 4 [8] The disciplinary findings were contained in correspondence dated 21 May 2021 ('the Decision Letter').8 The three allegations regarding the use of force on three different Young Persons ('YPs') which was not authorised, justified or reasonable in the circumstances were found to be substantiated. A further allegation of inappropriate behaviour towards a YP in one of those incidents was also found to be substantiated. Those findings were established on the balance of probabilities. [9] The delegate's disciplinary findings decision is the subject of this appeal. [10] As a result of the disciplinary findings made, the delegate considered there were grounds for Mr Biddle to be disciplined under the Public Service Act 2008 (Qld) ('PS Act') and the Code of Conduct for the Queensland Public Service ('the Code'). [11] As a result of finding allegations one, three and four to be substantiated, the delegate determined that Mr Biddle has: …contravened section 187(1)(b) of the PS Act, in that you are guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).9 [12] As a result of finding allegation two to be substantiated, the delegate determined that Mr Biddle has: …contravened section 187(1)(g) of the PS Act. In particular, you have contravened, without reasonable excuse, a standard of conduct in a way that is sufficiently serious to warrant disciplinary action. Specifically, sections 1.5(a) and (b) of the Code of Conduct for the Queensland Public Service (the Code) which provides as follows: 1.5 Demonstrate a high standard of workplace behaviour and personal conduct We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients, or members of the public. We will: a) treat co-workers, clients, and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own. b) ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment.10 8 Correspondence from Mr Darren Hegarty, Assistant Chief Operating Officer, Youth Justice, Statewide Services, Operations and Commissioning to Mr Biddle dated 21 May 2021 ('the Decision Letter'). 9 Ibid 2 - 4. 10 Ibid 3. -- 4 of 40 -- 5 [13] The Decision Letter also proposed a disciplinary penalty in the following terms: I am currently giving serious consideration to imposing the following disciplinary action: • termination of your employment.11 [14] Subsequently, an additional request was made by the Australian Workers' Union of Employees, Queensland ('the AWU') on 8 June 2021 to view the CCTV footage a second time. The department agreed – and that was facilitated on 14 June 2021.12 Mr Biddle was not permitted to also attend the BYDC at that time, due to his current status of paid suspension.13 However, it was noted that Mr Biddle had previously viewed the footage with his union representative at an earlier time.14 [15] On 11 June 2021, Mr Biddle filed an Appeal Notice against the disciplinary finding decision.15 He appointed his union – the AWU – as his representative in this matter. [16] On 16 June 2021, Ms Kylie Walden, Director, Employee and Industrial Relations, People and Culture, Department of Children, Youth Justice and Multicultural Affairs confirmed that: Mr Biddle remains employed with the department and is currently on suspension with full remuneration. The final penalty decision has not been made nor any further correspondence provided to Mr Biddle by the delegate… … Mr Biddle was to respond to the delegate – Mr Darren Hegarty, by the close of business 2 June 2021. To date Mr Biddle has not provided any response to Mr Hegarty nor requested an extension.16 Appeal Grounds [17] Mr Biddle's appeal is brought on the following grounds:17 1. The four disciplinary findings made were "harsh, unjust and unreasonable": a. Harsh in consideration of the contextual circumstances that preceded each of the allegations; and 11 Ibid 4. 12 Email correspondence from Ms Kylie Walden, Director, Employee and Industrial Relations, People and Culture, Department of Children, Youth Justice and Multicultural Affairs to the Industrial Registry dated 16 June 2021. 13 Email correspondence from Mr David Marr, Industrial Advocate, The Australian Workers' Union Queensland to the Industrial Registry dated 16 June 2021. 14 Email correspondence from Ms Kylie Walden, Director, Employee and Industrial Relations, People and Culture, Department of Children, Youth Justice and Multicultural Affairs to the Industrial Registry dated 16 June 2021. 15 Appeal Notice filed 11 June 2021. 16 Email correspondence from Ms Kylie Walden, Director, Employee and Industrial Relations, People and Culture, Department of Children, Youth Justice and Multicultural Affairs to the Industrial Registry dated 16 June 2021. 17 Appeal Notice filed 11 June 2021, Attachment 1. -- 5 of 40 -- 6 b. Unjust because the Employee is not guilty of the alleged misconduct; and c. Unreasonable because the material before the employer does not support the conclusion found.18 2. The disciplinary decision taken should be set aside.19 [18] To be clear, Mr Biddle does not appeal the decision to place him on paid suspension.20 [19] My determinations regarding those appeal grounds may be summarised as follows: 1. It was open to the delegate to find the four allegations to be substantiated. That decision was fair and reasonable. 2. There has been no decision to impose a disciplinary penalty. A proposed penalty cannot be subject to review at this stage, as only decisions can be appealed. A 'proposal' is not a 'decision'. Jurisdiction [20] Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(b)(i) of the PS Act provides that an appeal may be made "against a decision under a disciplinary law to discipline – a person (other than by termination of employment), including the action taken in disciplining the person." [21] Mr Biddle has been an employee of the Respondent at all times relevant to this appeal. [22] I am satisfied that the decision made by the delegate pertaining to Mr Biddle, contained in the Decision Letter dated 21 May 2021, is able to be appealed. For the reasons that follow, the 'Proposed disciplinary action' section of that letter is not capable of appeal. [23] Mr Biddle has filed this matter under s 194(1)(b) of the PS Act as an appeal against a disciplinary decision. I note that the department has submitted the appeal may be treated as a fair treatment decision under s 194(1)(eb) of the PS Act. I have included the relevant extracts of the PS Act at paragraph [47] below. Foundationally though, in either case, I am required to consider whether the delegate's decision was fair and reasonable - and so I will proceed on that basis. Timeframe to Appeal [24] Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. 18 Appeal Notice filed 11 June 2021, Attachment 1, [5] – [6]. 19 Ibid [10]. 20 Appellant's Reply Submissions filed 7 July 2021, 2 [7]. -- 6 of 40 -- 7 [25] The decision was given to Mr Biddle on 21 May 2021. [26] The Appeal Notice was filed with the Industrial Registry on 11 June 2021. [27] I am satisfied that the Appeal was filed by Mr Biddle within the required timeframe. Appeal principles [28] Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."21 This is the key issue for my determination. Subsection (4) provides that for an appeal against a decision about disciplinary action, 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. [29] A public service appeal under the IR Act is not by way of rehearing,22 but involves a review of the decision arrived at and the decision–making process associated therewith. [30] Findings made by department, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the Queensland Industrial Relations Commission member may allow other evidence to be taken into account.23 [31] Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing. What decisions can the Industrial Commissioner make? [32] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and substitute another decision; or (c) set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. 21 Industrial Relations Act 2016 (Qld) s 562B(3). 22 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld). 23 Industrial Relations Act 2016 (Qld) s 567(2). -- 7 of 40 -- 8 Decision Letter [33] The delegate determined the four allegations to be substantiated on the balance of probabilities. [34] On the basis of those findings, the delegate determined there to be grounds for Mr Biddle to be disciplined pursuant to s 187(1)(b) and (g) of the PS Act in that he is "…guilty of misconduct, that is inappropriate or improper conduct in an official capacity…" and that he has "…contravened, without reasonable excuse, a standard of conduct in a way that is sufficiently serious to warrant disciplinary action. Specifically, sections 1.5(a) and (b) of the Code of Conduct for the Queensland Public Service (the Code)…"24 [35] The delegate included an 'Analysis and finding' section under each allegation, to explain how he arrived at the findings on the balance of probabilities. [36] The delegate also stated that he was "currently giving serious consideration to imposing" the disciplinary action of termination of your employment.25 Submissions [37] In accordance with the Directions Order issued on 16 June 2021, the parties filed written submissions. [38] The Appellant's Submissions were filed on 23 June 2021. [39] The Respondent's Submissions were filed on 30 June 2021. Attached to the Respondent's Submissions were the following documents: Correspondence from Mr Darren Hegarty, Senior Executive Director, Youth Detention and Operations to Mr Biddle dated 9 December 2020 ('the Allegations Letter'); extracts of PS Act, ss 186C, 187, 187A, 188; Role Profile Section Supervisor; extracts of Youth Justice Act 1992, Schedule 1; Youth Justice Regulation 2016, ss 16, 17; Youth Detention Centre Operational Policy, YD-3-1 Youth detention – Duty of care obligations to staff and detained young people; Youth Detention Centre Operational Policy, YD-3- 2 Youth detention – Duty of care considerations for youth detention operational staff involved in violent or potentially violent incidents; Youth Detention Centre Operational Policy, YD- 3-4 Youth detention – Protective actions continuum; Brisbane Youth Detention Centre, Occurrence Report – 9704732; QHealth Review – 9994576; Biddle, Andreas Response to NTSC Allegations:, dated 18 December 2020 ('the Response Letter'); Public Service Commission's Directive 14/20 Discipline; Correspondence from Mr Darren Hegarty, Assistant Chief Operating Officer, Youth Justice, Statewide Services, Operations and 24 Decision Letter, dated 21 May 2021, 2 - 4. 25 Correspondence from Mr Darren Hegarty, Assistant Chief Operating Officer, Youth Justice, Statewide Services, Operations and Commissioning to Mr Biddle dated 21 May 2021 ('the Decision Letter'), 4. -- 8 of 40 -- 9 Commissioning to Mr Biddle dated 24 May 2021 ('the Paid Suspension Letter'); Correspondence from Mr Darren Hegarty, Assistant Chief Operating Officer, Youth Justice, Statewide Services, Operations and Commissioning to Mr Biddle dated 21 May 2021 ('the Decision Letter'); Public Service Commission's Directive 07/20 Appeals. [40] The Appellant's Reply Submissions were filed on 7 July 2021. [41] The Appeal Notice filed 11 June 2021 attached the following documents: Correspondence from Mr Darren Hegarty, Senior Executive Director, Youth Detention and Operations to Mr Biddle dated 9 December 2020 ('the Allegations Letter'); Biddle, Andreas Response to NTSC Allegations:, dated 18 December 2020 ('the Response Letter'); Correspondence from Mr Darren Hegarty, Assistant Chief Operating Officer, Youth Justice, Statewide Services, Operations and Commissioning to Mr Biddle dated 21 May 2021 ('the Decision Letter'); extracts of PS Act, ss 186C, 187, 187A; Public Service Commission's Directive 07/20 Appeals. [42] In addition to the written submissions provided by the parties, I have also had regard to some closed-circuit TV footage (CCTV) and Body Worn Camera footage (BWC) that captures the critical events relevant to the three incidents, which became the subject of the four allegations. [43] I have carefully considered all submissions and materials. I have determined not to approach the writing of this Decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' positions in my consideration of each question to be decided. Relevant provisions of the PS Act [44] The purposes of the PS Act are found at s 3 (emphasis added): 3 Main purposes of Act and their achievement (1) The main purposes of this Act are to— (a) establish a high performing apolitical public service that is— (i) responsive to Government priorities; and (ii) focused on the delivery of services in a professional and non–partisan way; and (b) promote the effectiveness and efficiency of government entities; and (c) provide for the administration of the public service and the employment and management of public service employees; and (d) provide for the rights and obligations of public service employees; and (e) promote equality of employment opportunity in the public service and in other particular agencies in the public sector. -- 9 of 40 -- 10 (2) To help achieve the main purposes, this Act— (a) fixes principles to guide public service management, public service employment and the work performance and personal conduct of public service employees; and … [45] Section 25(2) of the PS Act relevantly provides as follows: Public service employment is to be directed towards promoting – (a) best practice human resource management, ; … [46] Section 187 of the PS Act relevantly provides as follows (emphasis added): (1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— … (g) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. … [47] Section 194 of the PS Act relevantly provides as follows: (1) An appeal may be made against the following decisions— … (b) a decision under a disciplinary law to discipline— (i) a person (other than by termination of employment), including the action taken in disciplining the person; or … (eb) a decision a public service employee believes is unfair and unreasonable (a fair treatment decision); … (2) However – (a) if an appeal may be made under this section against a decision, other than under subsection (1)(eb), the appeal can not be made under subsection (1)(eb); … [48] Section 195 of the PS Act relevantly provides as follows: (3A) A person can not appeal against a fair treatment decision — … (b) made under chapter 6, part 2, other than a finding under section 187 that a disciplinary ground exists for the person; or … Relevant provisions of the Directive [49] Directive 14/20 Discipline ('the Discipline Directive') relevantly provides: 8.4 Decision on grounds (disciplinary finding) -- 10 of 40 -- 11 (a) A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities. (b) The chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding. (c) For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established. (d) The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding. (e) If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action. If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing. 8.5 Show cause process for proposed disciplinary action (a) The chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action). (b) The chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented. (c) The disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 188 of the PS Act. (d) In proposing appropriate and proportionate disciplinary action, the chief executive should consider: (i) the seriousness of the disciplinary finding (ii) the employee's classification level and/or expected level of awareness about their performance or conduct obligations (iii) whether extenuating or mitigating circumstances applied to the employee's actions (iv) the employee's overall work record including previous management interventions and/or disciplinary proceedings (v) the employee's explanation (if any) (vi) the degree of risk to the health and safety of employees, customers and members of the public (vii) the impact on the employee's ability to perform the duties of their position (viii) the employee's potential for modified behaviour in the work unit or elsewhere (ix) the impact a financial penalty may have on the employee (x) the cumulative impact that a reduction in classification and/or pay-point may have on the employee (xi) the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding. -- 11 of 40 -- 12 (e) A show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated. (f) The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension. (g) If the employee does not respond to a show cause notice on disciplinary action, or does not respond within the nominated timeframe in clause 8.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them. Consideration of the four disciplinary findings made [50] I will now consider whether the delegate's determination to substantiate the four allegations was fair and reasonable. Balance of probabilities [51] The delegate substantiated the four allegations on the 'balance of probabilities'. The Appellant's Reply Submissions argue that "…the Respondent should have tested the allegations further with other evidence in accordance with the principles set out within Briginshaw v Briginshaw of which the Appellant stresses the Respondent has not done."26 The wording of Briginshaw v Briginshaw27 ('Briginshaw') is incorporated into the Discipline Directive, and there is no contention that said principle does not apply in this matter. [52] Clause 14 of the Discipline Directive prescribes that: For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the: • Relevance of the evidence to the allegations • Seriousness of the allegations • Inherent likelihood or improbability of a particular thing or event occurring • Gravity of the consequences flowing from a particular finding. 26 Appellant's Reply Submissions filed 7 July 2021, 5 [27]. 27 (1938) 60 CLR 336. -- 12 of 40 -- 13 [53] In civil matters, the standard of proof is the balance of probabilities.28 The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed. As explained by Dixon J in Briginshaw:29 … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences… (The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained. [54] It may also be relevant to consider the evidence that would reasonably be expected to exist if the events alleged did indeed occur. It should be noted that circumstantial evidence is not excluded by Briginshaw or the concept of an 'exactness of proof'. Indeed, it is not unusual even for matters considered on the more onerous criminal standard of proof to be proved entirely with circumstantial evidence. In Chamberlain v The Queen (No 2), Gibbs CJ and Mason J provided: When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged…30 [55] The question is then whether it was open for the delegate to be reasonably satisfied of each of the substantiated disciplinary findings. That question informs whether the decision was fair and reasonable. It is not a hearing de novo. [56] The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):31 The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances. The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. 28 See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, 170-171. 29 Briginshaw v Briginshaw (1938) 60 CLR 336, 363, 30 (1984) 153 CLR 521, 536. 31 [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76]. -- 13 of 40 -- 14 A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it. The pluarity in Li said: … when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful … … there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker … … it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused. … Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification. Approach to Fact-finding [57] Vice President O'Connor recently observed in Motlap v Workers' Compensation Regulator that: In assessing the evidence, let me respectfully adopt the approach of MacKenna J who described his fact-finding process in a paper delivered at the University College, Dublin in 1973: This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to be the more probable, the plaintiff's or the defendant's?32 Security Footage [58] The Allegations Letter contains the 'Particulars' detailed for each of the four allegations put to Mr Biddle for his response. Those particulars are drawn from a review of the CCTV and BWC footage available for each incident. 32 [2020] QIRC 196, pages 8 – 9, [36]. -- 14 of 40 -- 15 [59] The delegate explained that: …CCTV and BWC footage formed part of the evidence I consider in Allegations 1, 2, 3 and 4. Due to the sensitive nature of the footage and client confidentiality, a copy cannot be provided to you. However, the department will provide an opportunity for you to view this footage. That correspondence went on to encourage Mr Biddle to make prompt contact with a designated officer to make arrangements to view the footage, ahead of preparing his response to the allegations. [60] I note that Mr Biddle and his union representative viewed the footage on 16 December 2020. An additional arrangement was made for a union representative to view the footage on 14 June 2021, shortly after the filing of this Appeal. [61] In determining whether procedural fairness was afforded to Mr Biddle, I have considered whether a copy of the security footage relied upon by the delegate was required to be provided to Mr Biddle to satisfy considerations of natural justice, or whether an opportunity to view it would be sufficient. [62] In this instance, natural justice required that the delegate disclose to Mr Biddle any potentially adverse or exculpatory material in advance of his requirement to file written submissions on the facts in issue. However, that does not inherently require copies of the material being provided. The requirement is generally satisfied where the gravity, substance or essential features of the information are disclosed.33 [63] The practice of summarising the evidence is very common for documentary evidence and has been followed in some instances for video evidence. However, I find that practice for video evidence somewhat troubling. Where the evidence is a video, the ability of a person to accurately distil the substance of that evidence into words is more clouded than with written evidence such as a report. Small nuances in the video could be missed, which may not appear relevant to the viewer. In my opinion, natural justice would generally require an opportunity for the video to actually be sighted by the person subject to the allegations. [64] However, that does not necessitate the provision of a copy of the material. An opportunity to view it would be adequate. That is particularly true where the video material may involve some graphic violence between an adult and a child. Indeed, the Respondent's privacy obligations to that minor could well be infringed by dispersing copies of such material. 33 See, eg, Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39, [98]; Coutts v Close [2014] FCA 19, [118]-[129]; Lamb v Redland City Council [2014] QIRC 41, [101]-[103]. -- 15 of 40 -- 16 [65] Considerations of natural justice dictate that Mr Biddle was entitled to view the footage before responding to the four allegations. That duty has been discharged in this case and such opportunity was afforded to him. It cannot be said that Mr Biddle was required to respond to incidents to which he was oblivious. Indeed the Response Letter evidenced that Mr Biddle did so in some detail and further submissions have been made in the course of this Appeal. [66] Whilst the delegate has recognised Mr Biddle agreed with the majority of particulars for allegations 1, 2 and 3 at the time of issuing the Decision Letter, various contentions have been subsequently advanced by the Appellant in the course of this appeal said to be sourced from the security footage. In some instances, the Appellant has claimed the footage reveals one thing and the Respondent contends the footage shows a different picture. In such circumstances, I considered the only reasonable path to be to view the footage myself. [67] With respect to the allegations, Mr Biddle's Reply Submissions submitted that the CCTV footage and BWC footage of the incidents is blocked by various obstructions - and therefore stated that the delegate erred by relying upon this evidence to substantiate the claims against Mr Biddle.34 [68] I note the delegate has referenced both the CCTV and the BWC footage and audio as part of the evidence relied upon to substantiate allegations in the Decision Letter. With respect then to Mr Biddle's contentions about the unreliability of the CCTV footage and BWC footage, I have earlier observed the application of Briginshaw and the standard of proof that applies in this matter: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. Quite simply, what is required is 'reasonable satisfaction'. [69] In order to determine whether it was reasonably open to the delegate to find the four allegations to be substantiated, I viewed the CCTV and BWC footage in the presence of a union representative and department officers on 13 August 2021. Allegation One On 24 February 2020, you used force on Young Person (YP) X35 which was not authorised, justified or reasonable in the circumstances. … 34 Appellant's Submissions filed 23 June 2021; Appellant's Reply Submissions filed 7 July 2021. 35 The name of this Young Person has been omitted from this Decision. -- 16 of 40 -- 17 …incident 9704733 involving YP X … was captured on both Closed Circuit Television (CCTV) and Body Worn Cameras (BWCs).36 … The actions you appear to have taken with YP X, namely using force that seemed neither reasonable nor justified, showed an inappropriate risk assessment on your behalf. You may have used force, both without justification and in excessive amounts, without attempting to de-escalate YP X. YP X was already displaying non-compliant behaviours. You have been trained in verbal and non- physical de-escalation techniques; however, you seem to not have used your training. As a result, YP X was placed in separation. It is alleged that the force you used on YP X, namely when you recklessly applied an unapproved technique, was not necessary to protect a child, or other person or property. In particular: a) It appears that your reckless actions and the velocity of force used to swing YP X by both arms around to the right and down onto the concrete floor was excessive and inconsistent with an approved PAC technique. It is noted that you stated in your occurrence report you used a straight-arm bar and ground stabilisation (Attachment 9). b) It is fortunate that YP X did not sustain any injuries as a result of being swung around and being close to the ping pong table. c) YP X was not presenting an imminent threat of harm to you, or any other person or property. There were several other staff in close proximity that could have assisted you with de- escalating YP X. The use of force seemed both unnecessary and unjustified in this incident. It is alleged that by using force instead of other de-escalation techniques in the first instance in your interactions with YP X, as well as using an excessive amount of force, you failed to demonstrate the appropriate conduct expected of an Acting SS…37 [70] The particulars for the allegation are set out in the Allegations Letter. Those particulars contain an account of the CCTV and BWC footage for incident 9704733. I have not summarised those particulars in this Decision. Allegation One - Submissions [71] The allegation was put to Mr Biddle for his response. He did so in correspondence dated 18 December 2020.38 In summary, Mr Biddle stated that: (a) Several YPs were voicing their discontent with the management of another YP (A) by another SS and other DYWs. As some of these YPs had assaulted staff in the past, Mr Biddle was concerned that the incident may escalate further should the YPs attempt to intervene in staff management of the incident. 36 The Allegations Letter noted that there were nine pieces of BWC footage. An account of the incident from a review of the CCTV and BWC footage was particularised. 37 Correspondence from Mr Darren Hegarty, Senior Executive Director, Youth Detention and Operations to Mr Biddle dated 9 December 2020 ('the Allegations Letter'), 4 – 6. 38 The Response Letter. -- 17 of 40 -- 18 (b) Mr Biddle and several other responding DYWs gave multiple verbal directions for the YPs to move back towards the couch and settle to ensure a safe environment. (c) YP X and another YP (B) remained non-compliant, on their feet and moving around, appearing defiant. At one point, YP X and YP B turned to each other and spoke "presumably in relation to the events occurring and possibly colluding." YP B made several threats to assault the SS and responding DYWs, that required the attention of two responding DYWs. (d) After numerous verbal directions had not been complied with, Mr Biddle escalated his response towards YP X who was refusing to comply with directions and "was acting in defiance and appearing malicious." He moved closer to YP X in order to use his presence and "made an attempt to handguide (YP X) to the couch" as he was still non-compliant with the direction. YP X pushed off Mr Biddle's hand and "appeared to attempt to make his way around (the) SS…who had his back to the YPs at the couch and was monitoring staff managing" YP A, who was subject of the initiating incident. (e) Mr Biddle's assessment was that YP X was "going to move around the ping pong table and attempt to gain access to staff managing (the first YP) with an attempt to assault or become malicious. I was already concerned about this potential which is why I was focused on attempting to gain compliance to verbal direction and have the YPs physically moved back to the couch allowing greater proximity between YPs and staff managing (the first YP)." (f) Mr Biddle was concerned that YP X's actions and behaviour may encourage other YPs to respond in kind, as that was already the case with respect to YP B who was threatening to assault staff who required additional management from two DYWs. Mr Biddle "assessed that a swift and decisive response was required to reduce the potential of multiple YPs becoming unsettled and aggressive towards staff." (g) Mr Biddle "attempted to use a PAC approved straight-arm bar technique to take control of (YP X) and stop him from having access to staff, there was a momentum in doing so and I became off balanced and tripped over mine and (YP X)'s feet resulting in my body weight unintentionally contributing to the force used which led to both myself and (YP X) falling to the ground. I can be observed as not having hold of (YP X) and not in control of his fall, as we fall to the floor as my arm is stretched out attempting to break my fall." (h) At that point, Mr Biddle looked towards YP B with concern that he may also try to intervene with staff. -- 18 of 40 -- 19 (i) Mr Biddle placed his hands on YP X's arms "with very little force in a ground stabilised position and determined that (YP X) was not resisting and appeared to be compliant so basically resting my hands on his arm." (j) "Staff had assessed (YP B) required separation to his room to ensure sufficient safety was maintained to manage the situation. I was directed by (the S/S) to escort (YP X) to his room where he was secured." (k) Mr Biddle accepted that he may have misinterpreted YP X's "actions and behaviours" and that it were possible that he "made an ill-informed perception of risk resulting in my risk assessment and associated actions…I accept it could appear excessive use of force was applied due to poor execution of technique being applied during rapid motion however it was accidental, and I had no intention for such force to be expelled nor was I intent on (YP X) being ground stabilised. My intent was to restrain (YP X) from accessing staff reducing the perceived risk to staff safety and possibly the security of the section." (l) Mr Biddle indicated that he had attempted to act "in accordance with policies and procedures and apologise for any actions that may not be consistent with the same." [72] In the course of this Appeal process, Mr Biddle has provided further submissions arguing the appropriateness of his actions. He stated that:39 (a) The delegate's decision to substantiate Allegation One was unfair and unreasonable. (b) The context of the incident is relevant. Shortly before the incident subject of Allegation One occurred, Mr Biddle and other staff had "just finished responding to an incident involving another unrelated YP." (c) The footage shows Mr Biddle both motioning to other YPs to move away from the incident and verbally telling them to do so. That is a reasonable instruction under s 16(1) of the Youth Justice Regulation 2016 (Qld) ('the Regulation'). The footage shows the YPs refusing to follow Mr Biddle's instructions. (d) The footage shows YP X is agitated. That is also evidenced where YP X "shoves (Mr Biddle's) hand away from him aggressively." Mr Biddle submitted that this showed YP X was "prone to provocation" and indicated the YP's "underlying potential for aggressive behaviour." (e) Mr Biddle responded to YP X's "aggressive behaviour" by the physical restraint. His contention is that "…the force may appear aggressive and disproportionate on 39 Appellant's Submissions filed 23 June 2021. -- 19 of 40 -- 20 camera due to the Appellant's failure to successfully perform a particular legitimate hold. Further, the Appellant's response was based on the perception that the YP was disrespecting and showing otherwise aggressive behaviour towards staff. The Appellant also stresses that he only intervened after the detainee had become aggressive."40 [73] In summary, Mr Biddle's position is that:41 a. The force appears excessive due to an accident by the Appellant to perform a particular legitimate hold; and b. The Appellant had no intention to harm or otherwise injure the YP; and c. The Appellant perceived a risk to himself and other staff members based on the YP's actions and prior experiences in which circumstances have escalated very quickly. Allegation One - Consideration [74] Mr Biddle stated that "the CCTV footage and BWC footage are additional material for the application" and sought that to be treated as "other evidence be taken into account".42 I have earlier recognised that Mr Biddle viewed the CCTV footage with his union representative on 16 December 2020, that was two days prior to providing the delegate with his response to the allegations. In his submissions filed on 23 June 2021, Mr Biddle now appears to recant the earlier concession that concluded his Response Letter. However, that amended response cannot be the result of Mr Biddle viewing the footage with his union representative, as that had already occurred. [75] In the Response Letter, Mr Biddle stated that: "(YP X) pushed off my hand guidance in defiance and appeared to attempt to make his way around (S/S) who had his back to the YPs at the couch…" Six months later, Mr Biddle submitted that: "…the footage shows that (YP X) shoves the Appellant's hand away from him aggressively." The department's position was that: "…this is not the case. The YP can be seen to shrug out of the hold, brush the Appellant's hand away and continues to walk around the table. YP X did not pose a threat at this point due to the minimal force the YP used to brush the Appellant away. In addition, there were also other employees in close proximity of the event of the YP's behaviour escalating." [76] Mr Biddle appears to have recalled YP X exhibiting a higher level of aggression in this initial phase of the incident between the time of the Response Letter and filing of the Appellant's submissions. In my view, to the extent that the two accounts provided by Mr Biddle depart, even slightly, it is the contemporaneous account that is to be preferred. In circumstances where that first contemporaneous account more closely aligns with the Respondent's recount of the footage, that is most certainly the case. 40 The Appellant's Submission cited the unpublished decision in PSA/2020/38. 41 Appellant's Reply Submissions filed 7 July 2021, 2 – 3 [10]. 42 Appellant's Submissions filed 23 June 2021, 3. -- 20 of 40 -- 21 [77] On that basis - and having now myself viewed the footage of the incident - I am persuaded that what occurred was that YP X "shrug out of the hold, brush the Appellant's hand away", or put another way "brushed off my hand guidance". I consider that perhaps the closest description of the footage was that YP X flicked off Mr Biddle's hand. [78] I note also that the S/S had their back to YP X at this time, while watching other staff manage YP A. That would be unlikely to remain the case if the S/S was aware of an "aggressive" movement behind them. In fact, the footage shows that the S/S did turn around only at the point where Mr Biddle took YP X to the ground. [79] Having accepted the Respondent's submission that "YP X did not pose a threat at this point due to the minimal force the YP used to brush the Appellant away", what then occurred is Mr Biddle pursued YP X and used physical force to take him to the ground from behind. Whether the full extent of the force exerted by Mr Biddle was deliberate due to poor judgement (a tackle) - or accidental due to poor technique (a topple) - the real point here is whether there was any need for Mr Biddle to physically restrain YP X at all. [80] I suspect the nub of the matter lies in Mr Biddle's own submission, that his (emphasis added): …response was based on the perception that the YP was disrespecting and showing otherwise aggressive behaviour towards staff. [81] The footage showed Mr Biddle and other officers variously giving YP X verbal directions to move back, well away from officers holding YP A on the ground resultant of a separate earlier incident. While it is true that YP X did not obey those instructions, it is also true that YP X's demeanour was not aggressive. YP X was watching the incident unfold, expressionless. In my view, he was just being a sticky-beak. [82] Immediately upon landing YP X on the ground, the footage reveals Mr Biddle saying to him: "Follow directions when you're given directions mate." However, on putting YP X in his room, the footage later shows Mr Biddle reporting to another officer: "He struck out at me Bro, he wasn't following directions." It appears to me that Mr Biddle may have embellished what had occurred to retrofit the approach taken to YP X. [83] The "otherwise aggressive behaviour towards staff" never eventuated, and this is reflected Mr Biddle's own Response Letter: …I may have misinterpreted (YP X's) actions and behaviours…and made an ill-informed perception of risk resulting in my risk assessment and associated actions. My assessment was based on previous experiences of incidents occurring across the centre some of which I have been involved with where these types of scenarios escalate extremely quickly resulting in staff assault. I accept it could appear excessive use of force was applied due to poor execution of technique being applied during rapid motion however it was accidental, and I had no intention for such force to be expelled -- 21 of 40 -- 22 nor was I intent on (YP X) being ground stabilised. My intent was to restrain (YP X) from accessing staff reducing the perceived risk to staff safety and possibly the security of the section. That seems a sensible admission, in light of the evidence before the delegate. Allegation One - Finding [84] For the reasons explained above, I agree with the Respondent's assessment that YP X was "not presenting an imminent threat of harm to (Mr Biddle), or any other person or property. There were several other staff in close proximity that could have assisted (Mr Biddle) with de-escalating YP X. The use of force seemed both unnecessary and unjustified in this incident." [85] The delegate recognised that Mr Biddle had conceded agreement with the majority of particulars outlined in Allegation One. The delegate noted Mr Biddle "believed (he) had applied the most appropriate PAC technique" and his reflections reproduced at paragraph [67] above. However, the delegate found that Mr Biddle's "reckless actions and the velocity of force (he) applied to swing (YP X) by both arms around to the right and down onto the concrete floor was excessive and inconsistent with any approved Protective Actions Continuum (PAC) technique." [86] I find that conclusion was open to the delegate to make – and that the delegate's determination to substantiate Allegation One was fair and reasonable. Allegation Two On 30 March 2020, you demonstrated inappropriate behaviour toward Young Person (YP) Y43 during an incident 9848713. … …incident 9848713 involving YP Y … was captured on both Closed Circuit Television (CCTV) and Body Worn Cameras (BWCs).44 … The actions you took with YP Y, namely antagonising him for a prolonged period after he made a calm and reasonable request for a spoon to eat his yoghurt appears to have been reckless and highly inappropriate. The request for a spoon by YP Y was not provocative or unacceptable in any way. It is alleged that due to your actions, an argument ensued resulting in YP Y throwing his tub of yoghurt at you, hitting you in the face. YP Y was subsequently ground stabilised and moved to separation where a second ground stabilisation occurred. YP Y was then separated for 35 minutes. The response you provided during the entire incident seems to have been aggressive and confrontational in both tone and language. Further, it was allegedly the trigger for YP Y's unacceptable actions. By antagonising YP Y to argue back with you, you failed to demonstrate the appropriate conduct 43 The name of this Young Person has been omitted from this Decision. 44 The Allegations Letter noted that there were four pieces of BWC footage. An account of the incident from a review of the CCTV and BWC footage was particularised. -- 22 of 40 -- 23 expected of a departmental Acting SS…45 Allegation Three On 30 March 2020, you used force on Young Person (YP) Y46 which was not authorised, justified or reasonable in the circumstances. … …incident 9848713 involving YP Y … was captured on both Closed Circuit Television (CCTV) and Body Worn Cameras (BWCs).47 … YP Y made a reasonable request for a spoon to eat his yoghurt. …it appears you antagonised YP Y to the point his behaviour became heightened and he threw his yoghurt at you leading to his first ground stabilisation. During the subsequent escort you can be seen to apply pressure to the YP's wrist that was in a backwards position and simultaneously apply downward pressure to just above YP's elbow. YP Y reacts to this unnecessary pressure and responds "Yeah stop trying to break my fucking arm cunt, I'll kick you in the fuckin dick cunt, word." You immediately respond with "Here, down! Down!" resulting in the second, awkward ground stabilisation where you and YP Y stumble and fall to the ground. YP Y's head hits the ground with force. It is alleged that you were not justified in ground stabilising YP Y at this point, as he was moved under restraint by two staff holding the YP securely in an extended arm bar and was compliant. Rather, it appears that when YP Y verbalised his objection to the force being applied to his arm, it is alleged that you asserted your authority by using force which was not authorised, justified or reasonable in the circumstances. During the ground stabilisations and then later in separation, YP Y makes comments about his head being sore. This was due to him hitting the floor with impact. He also raises concern for his legs and the pressure being applied. At no time through this incident did you check on the YP or display concern for him. He can be seen sobbing and holding his head after you leave the separation room. It is alleged that by using force instead of continuing to escort YP Y to the separation room, you failed to demonstrate the appropriate conduct expected of a departmental Acting SS…48 [87] The particulars for these two allegations are set out in the Allegations Letter. Those particulars contain an account of the CCTV and BWC footage for incident 9848713. I have not summarised those particulars in this Decision. 45 Correspondence from Mr Darren Hegarty, Senior Executive Director, Youth Detention and Operations to Mr Biddle dated 9 December 2020 ('the Allegations Letter'), 7 - 11. 46 The name of this Young Person has been omitted from this Decision. 47 The Allegations Letter noted that there were four pieces of BWC footage. An account of the incident from a review of the CCTV and BWC footage was particularised. 48 Correspondence from Mr Darren Hegarty, Senior Executive Director, Youth Detention and Operations to Mr Biddle dated 9 December 2020 ('the Allegations Letter'), 11 - 12. -- 23 of 40 -- 24 Allegations Two and Three - Submissions [88] These allegations were put to Mr Biddle for his response. He did so in correspondence dated 18 December 2020.49 As the two allegations pertained to the same incident involving the same YP, Mr Biddle elected to provide a combined response to allegations two and three. I will adopt the same approach in this Decision. In summary, Mr Biddle stated that: (a) Mr Biddle had exited the office to find YP Y already within the yellow boundary line marked on the floor around the office doorway. As YP Y began to escalate, Mr Biddle was mindful that YP Y was standing close to him. Mr Biddle considered that safety could be an issue should YP Y become aggressive and so made "several strong directions" for YP Y to comply and move back. (b) "(YP Y) continues to be abusive towards me and then without justified provocation throws yoghurt in (Mr Biddle's) face." (c) Mr Biddle assessed that YP Y had become physically violent and that there was a risk the behaviour could further escalate without further management. Mr Biddle did not believe YP Y could be safely escorted to his room, and that there was risk of further staff assault or injury to YP Y should such escort be attempted. (d) As such, Mr Biddle determined to ground stabilise YP Y "to eliminate this risk and allow for further assessment." Whilst ground stabilised, YP Y "resisted the techniques deployed by staff and made multiple threats to assault. I assessed the risk of assault was real. (YP Y) had stated he was calm and relaxed and then would threaten to assault - this occurred several times throughout the incident and additionally DYW's… BWC shows footage of YP Y flexing his arm several times attempting to break free from DYW's… hold." Mr Biddle considered that the verbal statements made by YP Y that he was calm did not match his observed behaviours. (e) During staff attempts to transfer the YP to the separation room, the YP again tried to resist staff intervention and continued to be verbally abusive. Mr Biddle's assessment was that it would be challenging to continue the transfer of YP Y to the separation room, as the narrow corridor and physical size of he and the DYW assisting meant that the techniques used to keep YP Y under sufficient control may be compromised. (f) "As such in that moment I assessed (YP Y) was posing significant risk of harm to both staff and himself and that we could not safely continue the escort and placing 49 The Response Letter. -- 24 of 40 -- 25 (YP Y) on the ground to further calm and allow for assessment to (YP Y's) stability was the best option available." (g) Having assessed the current path as a risk, Mr Biddle then attempted to turn YP Y around from the wall leading toward the separation room and the adjourning quiet area table to face the lounge area clear of obstruction. The DYW and Mr Biddle began ground stabilisation. Mr Biddle stated that he gave the direction as per PAC training "Here, down, down". Another DYW attempted "to assist with a three-man takedown by applying a PAC approved Inside Takedown which was shown on BWC to be poorly executed. This action gave momentum to the actions of staff bringing (YP Y) to the ground and resulting in myself becoming off balance falling to the ground with (YP Y)." (h) During the ground stabilisation, staff made numerous inquiries to assess YP Y's ability to be moved to the separation room safely. YP Y "appears to be de- escalating" as the threats against staff have diminished in favour of "focused on complaints of injury to himself." In that case, YP Y was brought to his feet and escorted to the separation room. (i) Mr Biddle conceded that requesting a spoon was a reasonable request and accepted that his language was inappropriate. (j) Mr Biddle stated that he did advise YP Y that he may ask staff in his section for a spoon and to use his manners. (k) Mr Biddle offered some relevant context was that "there has been several incidents where plastic cutlery had been used maliciously to interfere with locking mechanisms and compromise the security of door locks. In some occasions compromising the security of section entry ways…So much so, that section staff were directed to treat plastic cutlery as a dangerous good and make account for it when it is being dispensed and ensuring its collection after use." (l) Mr Biddle demonstrated some insight as to how he may have better managed the incident, accepting that his response "gave (YP Y) grounds to personalise the situation towards me rather than resolving his issues about not receiving a spoon. I should have told the YP I was going to clarify the situation with … staff before providing a spoon." In hindsight, Mr Biddle also understood that he "was a potential trigger for the YP and my presence was not assisting in the de-escalation of the YP." (m) Mr Biddle stated that he "did not direct (the last DYW) to initiate an inside takedown during the incident nor could I predict it. I accept poor technique during a PAC approved three-man takedown possibly resulted in accidental injury to (YP Y)." -- 25 of 40 -- 26 (n) Mr Biddle accepted that his course of action "may not have been the most appropriate and apologise for actions that may have been inconsistent with policies and procedures." [89] In the course of this Appeal process, Mr Biddle has provided further submissions arguing the appropriateness of his actions. He stated that:50 (a) The delegate's decision to substantiate Allegations Two and Three was unfair and unreasonable. (b) Mr Biddle did not deny YP Y a spoon or seek to antagonise him but rather: a. Reasonably instructs the YP to ask for the spoon from another more appropriate staff member; and b. Reasonably requests that the YP ask for it respectfully (with manners). (c) The context of the incident is relevant, "particularly that plastic spoons had previously been used by YPs to tamper with the door locking mechanisms of the facility." In light of that context, Mr Biddle's hesitancy to provide the requested spoon was not unreasonable. (d) The footage shows YP Y become enraged and begin "to violently swear, threaten and abuse" Mr Biddle, before throwing his yoghurt at him. "The Appellant and two other officers respond to the YP's action by engaging in a 3 man take down using reasonable force to restrain the YP." (e) Mr Biddle stated that the: …CCTV footage is dangerous to rely upon as most of what occurs after is not captured by the CCTV camera and what is captured is partially, if not completely, obstructed by a table- top (bench). Therefore, on that basis the Appellant submits that the Respondent erred by relying upon this evidence to substantiate the claims against him. The Appellant submits that the BWC footage shows a more holistic and reliable account of what occurred as the YP was being moved to the holding room. In the BWC footage, at approximately 13:06, it appears that the YP attempts to kick the Appellant as he is being moved to the holding room. This action by the YP prompted the Appellant and two other officers to again physically restrain the YP on the ground. The Appellant disputes any notion that YP was 'thrown' on the concrete, but rather was reasonably restrained in response to the YPs violent and aggressive behaviour to all of the officers. 50 Appellant's Submissions filed 23 June 2021. -- 26 of 40 -- 27 (f) Mr Biddle noted that as there were three officers (including himself) restraining YP Y, the force used was "not excessive but was justified and or reasonable in the minds of all 3 of the officers in the circumstances." [90] In summary, Mr Biddle:51 a. Denies that he refused to give the YP a spoon; and b. Re-iterates the points made in paragraph eighteen of these submissions;52 and c. Stresses that force was only used after the Appellant has violently thrown his yoghurt at the Appellant; and d. Submits that the force used was not unnecessary in the minds of the other officers involved. Allegations Two and Three - Consideration [91] Having now myself viewed the footage of this incident, the conversation between Mr Biddle and YP Y regarding the spoon request appears to be accurately documented in the 'Particulars' section of the Allegations Letter.53 I would make the following observations: (a) Mr Biddle has accepted requesting a spoon to be a reasonable request. While Mr Biddle states that spoons have been misused by YPs in the past, that context is relevant only to how the provision of the spoon needs be accounted for by staff to ensure its return. Essentially, that was a matter for staff to manage, not for YP Y. (b) Mr Biddle claimed that he did not deny YP Y's request for a spoon. In my view, that is semantics - as neither did Mr Biddle indicate that he would give YP Y a spoon or otherwise assist him to obtain one at any time before the yoghurt was thrown and it was no longer required. The nature of Mr Biddle's repeated responses to YP Y's requests would not have indicated any intention to provide a spoon. In his Response Letter, Mr Biddle states that he "did advise (YP Y) he could ask the staff in his section for a spoon" and that "I should have told the YP I was going to clarify the situation with …staff before providing a spoon." While Mr Biddle later submitted that he "Reasonably instructs the YP to ask for the spoon from another more appropriate staff member",54 the footage does not show Mr Biddle to be giving that instruction in a reasonable way at that time. Mr Biddle admitted that 51 Appellant's Reply Submissions filed 7 July 2021, 2-3 [10]. 52 That is, that Mr Biddle submitted that he had: Reasonably instructed the YP to ask for the spoon from another more appropriate staff member; and reasonably requested that the YP ask for it respectfully (with manners). 53 Allegations Letter, 7 [2]. 54 Appellant's Submissions filed 23 June 2021, 3 [18]. -- 27 of 40 -- 28 he should have clarified the spoon provision with the YP's own section staff, but ultimately he didn't do that. (c) In terms of Mr Biddle's requirement that YP Y "use manners" in making the request for the spoon, I note that YP Y calmly asked for a spoon twice. Mr Biddle rebuffed or deflected YP Y's calm request on both occasions, before expressing his indignation that YP Y had disturbed him when there was "staff out here to ask for a fuckin spoon." The first person to swear in the exchange was Mr Biddle. Until that point, YP Y had been simply asking. In my view, the verbal exchange that followed amounted to Mr Biddle goading YP Y, both in his tone and words used. Unsurprisingly perhaps, the situation degenerated quickly after that, on both sides. (d) Mr Biddle stated that force was used only after the yoghurt was thrown at him. As I have explained above, it was Mr Biddle - not YP Y - who was the provocateur in the exchange immediately prior to that event. Mr Biddle has submitted that "It would have been prudent for me at this time to assign another staff member to take over my position or other attending staff observe this occurrence and direct me to swap with other staff." At the time of the incident, Mr Biddle was an Acting S/S. The department has submitted that "In the role of A/SS, the Appellant holds a higher level of experience and is expected to support a team of DYWs of less experience than he."55 Presumably, it would be unusual for a subordinate staff member to direct Mr Biddle to swap with someone else. (e) In terms of whether the force used was necessary, it certainly may have been easily avoided by Mr Biddle handling the incident differently from the start. Mr Biddle demonstrated some insight in that respect in his Response Letter, that has been recognised by the delegate in the Decision Letter. However, I note that Mr Biddle appears to have somewhat resiled from that position in his most recent submissions. Physical force was used on YP Y after he had thrown the yoghurt and rushed towards Mr Biddle. While the first ground restraint was necessary, the force used may have been excessive. My view is based on the following exchange, that provided some insight into the extent of the pain felt by YP Y and whether it was necessary at the time it was applied. In response to another S/S and DYW applying the leg lock, YP Y stated "Wait, woah, what the fuck, relax on my leg." Mr Biddle replied "Stop, stop resisting staff". YP Y stated "I'm not even resisting." Moments 55 Respondent' Submissions, 3 [22]. -- 28 of 40 -- 29 later, YP Y stated "Last time I had my fuckin leg broken. [S/S] you know this bro. Relax on my leg bro." (f) Having regard to the evidence before me – including the footage – the second ground stabilisation was not justified at all. YP Y was being moved under restraint by two staff and was compliant. YP Y voiced his objection to the pain Mr Biddle was inflicting on his arm. Mr Biddle responded with physical force and toppled YP Y to the ground. The YP clearly hurt his head as it hit the ground, without his hands free to break his fall. In my view, the force was used to inflict pain. (g) The footage also showed the reactions of other YPs, watching as the situation degenerated. One YP was heard to call out advice "[YP Y], be quiet bro!" - and (directed to the officers) "He's clearly not resisting!" Mr Biddle suggested that "poor technique during a PAC approved three-man takedown possibly resulted in accidental injury to (YP Y)." Further, Mr Biddle accepted "that the course of action undertook by myself against (YP Y) may not have been the most appropriate and apologise for actions that may have been inconsistent with the policies and procedures." For the reasons explained above, I do not accept that the physical force used on YP Y was authorised, justified or reasonable in the circumstances. [92] I have considered Mr Biddle's own reflections in his Response Letter: I accept requesting a spoon within itself is a reasonable request however I note there had been several incidents where plastic cutlery had been used maliciously to interfere with locking mechanisms and compromise the security of door locks. … I accept my choice of language was inappropriate and did not serve to assist the YP. I did advise (YP Y) he could ask the staff in his section for a spoon and to use his manners however in hindsight my interaction with him gave (YP Y) grounds to personalise the situation towards me rather than resolving his issues about not receiving a spoon. I should have told the YP I was going to clarify the situation with … staff before providing a spoon." In hindsight, during the incident I accept I should have recognised I was a potential trigger for the YP and my presence was not assisting in the de-escalation of the YP. It would have been prudent for me at this time to assign another staff member to take over my position or other attending staff observe this occurrence and direct me to swap with other staff. My responses had become automated and I was progressing through the motions of procedure. I did not direct (the last DYW) to initiate an inside takedown during the incident nor could I predict it. I accept poor technique during a PAC approved three-man takedown possibly resulted in accidental injury to (YP Y). Overall and in hindsight, I accept that the course of action undertook by myself against (YP Y) may not have been the most appropriate and apologise for actions that may have been inconsistent with the policies and procedures. -- 29 of 40 -- 30 The final paragraph seems a sensible admission, given the evidence of the footage and Mr Biddle's contemporaneous response to the allegations put to him.56 Allegations Two and Three- Finding [93] The delegate recognised that Mr Biddle had conceded agreement with all the particulars outlined in Allegation Two and the majority of particulars outlined in Allegation Three. [94] For the reasons explained above, I agree with the delegate's assessment that "By antagonising (YP Y) to argue back with you, you failed to demonstrate the appropriate conduct expected of a SS."57 Further that "By your own admission, you acknowledge that your actions were inconsistent with the approved techniques for physical intervention under the PAC…I maintain my view that you used force on (YP Y) that was not authorised, justified or reasonable given the circumstances."58 [95] I find that conclusion was open to the delegate to make – and that the delegate's determination to substantiate Allegations Two and Three were fair and reasonable. Allegation Four On 4 May 2020, you used force on Young Person (YP) Z59 which was not authorised, justified or reasonable in the circumstances. … At an unknown time on 4 May 2020, whilst YP Z was at the basketball court, two unidentified YPs gained access to YP Z's room and removed some of YP Z's personal property from the room without his permission. … …incident 9994319 involving YP Z … was captured on both Closed Circuit Television (CCTV) and Body Worn Cameras (BWCs).60 … The force used on YP Z's legs and foot when you applied the leg lock, does not appear to have been necessary to protect a child, or other person or property. In particular, it is alleged that – a) You applied excessive pressure to YP Z's legs by hyperextending the YP's foot and using your knee to push down on the YP's leg. The purpose of the leg lock is to restrict the YP's movement and to allow staff to gain / remain in control of a young person post incident, it is not to be used to inflict pain. b) It appears that you applied a significant downward pressure on the YP's left foot (his toes were not far off touching the YP's buttocks). You also had your left knee pushed down onto the YP's left leg. This pressure of your knee appears to have been applied for the entire 56 Response Letter. 57 Decision Letter, 2. 58 Decision Letter, 3. 59 The name of this Young Person has been omitted from this Decision. 60 The Allegations Letter noted that there were seven pieces of BWC footage. An account of the incident from a review of the CCTV and BWC footage was particularised. -- 30 of 40 -- 31 duration of the incident once ground stabilised and up until YP Z was assisted from the ground. c) Your actions appear inconsistent with the approved techniques for physical intervention outlined in the Youth Detention Policy YD-3-4 'Protective Actions Continuum' (PAC). In accordance with Youth Detention Policy PAC, interventions may only be used on a non- compliant YP and where it has been assessed that the use of de-escalation and other less physical options would not resolve the incident. Once the young person complies, the force must be de- escalated in accordance with the totality of circumstances and the ongoing risk assessment. a) YP Z is a … of medium build. b) Your alleged actions of applying and maintaining a significant amount of pressure on YP Z's legs and foot area, even after he was calm may not have been authorised, as YP Z had settled. c) Further, you allegedly failed to acknowledge and appropriately respond to YP Z's comments advising that he was in pain and discomfort. d) YP Z sustained an injury as a result of the incident – mild swelling to his left second toe and a limited range of movement due to pain requiring an icepack and rest (Attachment 10). e) The footage is of concern as it would appear that you have wilfully harmed the YP and placed him at an unacceptable risk of further harm, i.e. muscular / ligament tears. By using force instead of other de-escalating techniques in the first instance in your interactions with YP Z, it is alleged you failed to demonstrate the appropriate conduct expected of a departmental Acting SS…61 [96] The particulars for the allegation are set out in the Allegations Letter. Those particulars contain an account of the CCTV and BWC footage for incident 9994319. I have not summarised those particulars in this Decision. Allegation Four - Submissions [97] The allegation was put to Mr Biddle for his response. He did so in correspondence dated 18 December 2020.62 In summary, Mr Biddle stated that: (a) Responding to the incident already underway, staff were struggling to ground stabilise YP Z. A DYW was having difficulty applying a PAC approved leg lock, as YP Z was resisting. Mr Biddle observed YP Z kick out of the DYW's leg lock attempts and "in the process (the DYW) was struck in the face," (b) Mr Biddle then replaced the DYW and applied the PAC approved leg lock to YP Z, with some difficulty as he continued to resist. 61 Correspondence from Mr Darren Hegarty, Senior Executive Director, Youth Detention and Operations to Mr Biddle dated 9 December 2020 ('the Allegations Letter'), 12 – 16. 62 The Response Letter. -- 31 of 40 -- 32 (c) "I accept that the attempt to ground stabilise (YP Z) and techniques applied in that moment appear questionable and was not aided to the force of (YP Z's) resistance and multiple people attempting to assist. I do not recall my knee being placed on (YP Z's) leg nor did I make an intentional decision to do so. In viewing CCTV footage and BWC I note my left leg which had (YP Z's) ankle locked in for leverage was not as per correct technique and was bent as to have the ankle locked in behind my knee socket." Mr Biddle noted there was space between the floor and his shin. He stated that "Given those occurrences it would be very difficult to also have my left leg on top of (YP Z's) left leg. I note the imaging is very difficult to give determination that my left leg was on top of (YP Z's) left leg because of the dark clothing." (d) As YP Z was resisting, multiple directions were given to him by Mr Biddle, a DYW and a SS. Mr Biddle said "I accept that whilst venting my frustrations with the situation my choice of language was inappropriate however was not directed at the YP personally rather extremely poor language expressing the difficulties we were having and the amount of resistance we encountered." (e) BWC footage shows YP Z referring to a pre-existing injury, specifically that the officers were "spraining his sprained heel". Mr Biddle understood that "CCTV footage and BWC footage shows (YP Z) in his room prior to him being restrained and (Mr Biddle's) involvement where (YP Z) had exerted great force using his feet to kick items in his room. Given (YP Z's) statements of a pre-existing injury during the restraint and (YP Z's) behaviours and actions in his room it is plausible his injuries had been sustained prior to my involvement." (f) YP Z pleaded for the pressure on his leg to be eased and Mr Biddle asked if he understood the directions to cease resisting and not kick out at staff. YP Z acknowledged the direction. Mr Biddle shook his head "in frustration that we had to exert so much energy in the restraint to get some indication of compliance." Mr Biddle contended that it was the other SS present who stated "Nah, we can wait" and not himself as alleged. Mr Biddle said the BWC footage evidenced this. YP Z complained of his sprained heel and Mr Biddle then released pressure on YP Z's leg and began verbal de-escalation. That too is shown on the BWC footage. (g) YP Z stated "release a bit of pressure on the one there." Mr Biddle stated the emphasis on the word "there" was "a sound of relief and acknowledgement the pressure had been released." The other SS had told Mr Biddle "Nup, just leave it", but Mr Biddle responded "I already have" (released the pressure), however it was noted that this was "unable to confirm the audio on BWC's". -- 32 of 40 -- 33 (h) BWCs record the verbal de-escalation continuing and YP Z's "attention moves from his leg as the pressure had been released" and was then focused on the other SS. (i) Mr Biddle concluded that the execution of his leg lock technique was not correct and that his language was inappropriate. However, he maintained that he released the pressure on YP Z's leg when he complained it was hurting his already injured heel. Mr Biddle also explained that he was swearing in frustration at the situation, and not at the YP per se. [98] In the course of this Appeal process, Mr Biddle has provided further submissions arguing the appropriateness of his actions. He stated that:63 (a) Approximately four officers were responding to an incident with YP Z, in which the YP was physically restrained. Mr Biddle was not involved in the initial take down of YP Z but was later required to assist officers to restrain the YP. (b) The footage showed YP Z kicking and abusing the officers. In particular, the footage showed "that one of the officers holding the YP's foot loses his grip on the YP's foot, slips and is kicked as a result." Only after this does Mr Biddle intervene to hold YP Z's left leg. (c) Mr Biddle stated that "the force was not excessive, but reasonably necessary to stop the YP from kicking either the Appellant or any other staff member." (d) YP Z was then moved to a holding room where "he is released from restraint and immediately rises not showing any signs of significant injury." (e) At least seven officers were required to immobilise YP Z to prevent harm to himself and staff, due to his erratic behaviour. (f) The Appellant's Submissions reference the unpublished decision in PSA/2020/38 "…a case somewhat analogous to the facts of this allegation. In (the unpublished decision), Commissioner Dwyer held that the YP had been provoked by another officer and the Appellant had only intervened after the detainee had become aggressive and physical intervention was consistent to prevent injury or harm to the detainee or others by implementing legitimate restraint.64 It is the Appellant's submission that similar circumstances occurred in this case…" 63 Appellant's Submissions filed 23 June 2021. 64 PSA/2020/38. -- 33 of 40 -- 34 [99] In summary, Mr Biddle stated that:65 a. many of the injuries sustained by the YP could not have been caused solely by the Defendant's actions in consideration that several other officers were required to restrain this particular YP and the Appellant was only restraining the YP's left leg. b. It is arguable that the injuries suffered by the YP to left foot were partially (if not completely) self-inflicted due to him kicking and thrashing whilst being restrained. … c. The force was justifiable in consideration of the facts raised in the Appellant's further submissions in support… … c. The delegate erred in not giving stronger consideration to the contextual facts relating to allegation four. … The Appellant disputes…the Respondent's submissions to the extent that the Respondent claims the force was not necessary nor reasonable and was therefore unlawful and that it was open for the delegate to conclude the same. The Appellant does not dispute the Respondent's statement about its duty of care to the YPs, but wishes to highlight that employees are also owed a duty of care to be provided with a safe workplace (so far as reasonably possible). Allegation Four - Consideration [100] Relevantly, section 16(5) of the Regulation provides (emphasis added): 16 Managing child's behaviour … (5) A detention centre employee may use reasonable force to protect a child, or other persons or property in the centre, from the consequences of a child's misbehaviour if— (a) the employee has successfully completed physical intervention training approved by the chief executive; and (b) the employee reasonably believes the child, person or property can not be protected in another way. [101] Youth Detention Policy: YD-3-1 specifies that (emphasis added): Youth detention staff are responsible for: • ensuring the safety of detained young people, other staff and visitors • responding to an incident using a proportionate level of response as part of the Youth Detention Protective Actions Continuum • demonstrating a duty of care towards those whom physical intervention is applied [102] Youth Detention Policy: YD-3-2 states that (emphasis added): …for youth detention operational staff discharging their duty of care in a violent or potentially violent situation, the Youth Justice Regulation 2016 also requires that: 65 Appellant's Reply Submissions filed 7 July 2021, 5 - 6. -- 34 of 40 -- 35 • physical contact cannot be used as a way of disciplining a young person; • reasonable force can be used by youth detention centre staff only as a last resort to protect people or property; • any force used must not be more than is reasonably necessary [103] Youth Detention Policy: YD-3-4 states that (emphasis added): 2.4 The Youth Detention Protective Actions Continuum comprises of four intervention levels: 1. verbal and non-physical de-escalation 2. disengagement and assault avoidance 3. defensive physical interventions, and 4. assertive physical interventions. … 7.2 Level 4 options can only be used if all other options to protect people who are at risk of serious harm have failed or are likely to fail and where it is not possible to withdraw from the situation. 7.3 These interventions can only be used on a non-compliant person and where it has been assessed that the use of de-escalation and other less physical options would not resolve the incident. Once the young person complies, force must be de-escalated in accordance with the totality of circumstances and the ongoing risk assessment. [104] The first limb of s 16(5) of the Regulation permits a detention centre employee to use reasonable force to protect a child or other person in the centre, from the consequences of a child's misbehaviour if the employee has successfully completed physical intervention training. The Allegations Letter contains reference to a number of training programs undertaken by Mr Biddle, together with the recognition that "SSs have a responsibility for supervising and managing the provision of quality and professional interactions between staff and young persons (YPs)." There has been no suggestion by either party that Mr Biddle has not had successfully completed physical intervention training, and in those circumstances I accept that to be the case. [105] The second limb of s 16(5) of the Regulation permits a detention centre employee to use reasonable force to protect a child or other person in the centre, from the consequences of a child's misbehaviour if the employee reasonably believes the child or person cannot be protected in another way. In circumstances where Mr Biddle was effectively joining to support the position of a DYW who had just been kicked by YP Z, he was justified in such "reasonable belief" at that time in my view. [106] My consideration now turns to what was "reasonable force" in such a situation, with the authority extending only to a "proportionate level of response". [107] The extent of YP Z's injuries are described in the Decision Letter by the delegate: As a result of your actions during this incident, YP (Z) did receive further injuries. Specifically, YP (Z) received scratches and had red marks on his wrist, inner biceps and chest. YP (Z) also had -- 35 of 40 -- 36 mild swelling to his left second toe and was experiencing pain. This was clearly noted in the health assessment that as provided to you in my letter dated 9 December 2020. It should be noted that these injuries were not a result of any pre-existing injury.66 [108] Mr Biddle does not dispute that YP Z suffered some injury but in the Appellant's Reply Submissions it is argued that those injuries "were partially (if not completely) self- inflicted due to him kicking and thrashing whilst being restrained" – and, in the alternate, that several officers were required to restrain YP Z and so it is not determinative as to whether it was Mr Biddle, another officer or a combination of officers that contributed to YP Z's injury. [109] It is not in dispute that YP Z suffered some injury resultant from the incident on 4 May 2020, including to YP Z's left second toe. [110] Having now myself viewed the footage of this incident, I would make the following observations: (a) I note that Mr Biddle's involvement in the physical restraint of YP Z only occurred at the point where "you step in and attempt to assist (the DYW) to secure (YP Z) legs. (An SS) then briefly uses his forearm to apply pressure to the YP's bicep. (The DYW) adjusts his positioning. (YP Z) kicks out his feet and comes in contact with (the DYW's) jaw." I have considered whether it may have been possible that YP Z's left second toe was hurt by kicking the door in his room or by kicking the DYW's jaw, but I have rejected that. Instead I find it more probable that the injury to YP Z's left toes was caused by Mr Biddle's inexpert or excessive application of force in applying the leg lock. In reaching that conclusion, I note that Mr Biddle took over the task of holding YP Z's left leg from the kicked DYW, and that YP Z was heard to scream out "Aaahhh that's my toes. Aahh God" only at the point Mr Biddle pulled his leg back and reapplied the leg lock. That sequence is persuasive. The footage earlier shows YP Z kicking the door in his room with his right foot, so for that reason I do not consider the injury to be self-inflicted in that sense. Further, if YP Z had injured his left foot in kicking the DYW, he would have been heard to exclaim at that earlier point in the footage, rather than at the time of Mr Biddle moving in to support the left leg hold position. (b) When YP Z was heard to state "Ahhh, release a bit of pressure on the one there," Mr Biddle contended there was an emphasis placed on the word "there" and that it meant there was "a sound of relief and acknowledgement the pressure had been released." I listened carefully in viewing the footage but did not find that to be the case. Further, Mr Biddle's submission was that the other SS had then told him "Nup, just leave it", but that Mr Biddle had responded "I already have" (released the pressure). Mr Biddle had conceded that he was "unable to confirm the audio 66 Decision Letter, 4. -- 36 of 40 -- 37 on BWC's" – and I agree that particular exchange was not evident on the footage I viewed. (c) In terms of the "proportionate level of response", Policy YD-3-4 above states that (emphasis added): "These interventions can only be used on a non-compliant person and where it has been assessed that the use of de-escalation and other less physical options would not resolve the incident. Once the young person complies, force must be de-escalated in accordance with the totality of circumstances and the ongoing risk assessment." Some time elapses between Mr Biddle being aware that YP Z's foot is hurt and pressure on it being released. The footage showed Mr Biddle's response to YP Z's expression of pain was inappropriate in words, tone and volume. [111] Mr Biddle's submissions have referred me to an unpublished Commission decision67 ('the unpublished decision') and I have considered it. [112] As in the unpublished decision, "Before dealing with the CCTV footage it is appropriate to note the relevant context in which these events occurred." In the Allegations Letter to Mr Biddle, it was recorded that "whilst (YP Z) was at the basketball court, two unidentified YPs gained access to (YP Z's) room and removed some of (YP Z's) personal property from the room without his permission." [113] Again here, as in the unpublished decision, "It is obvious from the CCTV footage that, on some level, the youth detainee in question was agitated…Both of these behaviours, in my view, are indications of the detainee's underlying potential for aggressive behaviour…I consider, from my observations of the footage, that he was prone to provocation." Mr Biddle too had observed YP Z "in his agitated state." The Allegations Letter recounted that another SS and DYW told YP Z that he is being moved to separation. The footage showed YP Z verbally expressing his objection - but complying with the officers' physical escort. Seemingly in response to YP Z complaining to the DYW about his arm being hurt, the SS ordered the ground stabilisation that was effected by the group of officers. That appears to have been poorly executed as YP Z's leg breaks free and kicks the DYW attempting to hold it. [114] As in the unpublished decision, in this case too "It is said that this was an attempt to perform a particular legitimate hold, but it failed…" Further: To the extent that Mr (X) can be seen commencing contact with the youth detainee, it is only after the youth detainee has been provoked by Mr (Y), at which point the detainee has become physically aggressive." Regardless of the cause of the youth detainee's physical aggression, for which I squarely place the blame on Mr (Y), it is clear from my observation of the CCTV footage that Mr (X) only intervened after the detainee had become aggressive. 67 PSA/2020/38. -- 37 of 40 -- 38 I accept that it was also the case here that Mr Biddle joined the physical restraint of YP Z only after he had become aggressive. [115] However, this case departs from the unpublished decision in that the force used by Mr Biddle was not "proportionate" in my view. Unlike the Commission's assessment in the unpublished decision, I do not find here that Mr Biddle's physical intervention "…at that point would be consistent with reasonable action to prevent injury or harm to the detainee or others by implementing legitimate restraint...68" Mr Biddle's actions went beyond that. Having considered carefully the unpublished decision, I have not found it to be analogous to Mr Biddle's involvement in the 4 May 2020 incident in critical respects. For that reason, I have not drawn the same conclusion as the Commission's determination in that separate matter. Instead, I find that the delegate's decision to substantiate allegation four was fair and reasonable. [116] I have considered Mr Biddle's own reflections in his Response Letter: In hindsight my leg lock technique should have had my left foot placed flat on the ground and my knee should have been at a 90-degree angle securing (YP Z's) ankle behind my calf muscle giving leverage and control of (YP Z) lower body movement. I should have been aware of my frustration and environment and in the moment of the incident refrained from inappropriate language. When (YP Z) made comment of an injured heel, I released pressure and advised (the other SS) as such when he told me to maintain it. Overall, I am very sorry for any actions that may not be consistent with the policies and procedures of the organisation. That seems a sensible admission, given the evidence of the footage and Mr Biddle's contemporaneous response to the allegations put to him.69 Allegation Four- Finding [117] The delegate recognised that Mr Biddle had conceded agreement with concerns that he had "applied the incorrect PAC techniques and made inappropriate comments during this incident".70 [118] For the reasons explained above, I agree with the delegate's assessment that "the force on (YP Z) was not authorised, justified nor reasonable given the circumstances."71 [119] I find that conclusion was open to the delegate to make – and that the delegate's determination to substantiate Allegation Four was fair and reasonable. 68 Youth Justice Regulation 2016 (Qld), s 16(5). 69 Response Letter. 70 Decision Letter, 4 71 Decision Letter, 4. -- 38 of 40 -- 39 Consideration of whether the "disciplinary decision taken" should be set aside [120] In the Appeal Notice, Mr Biddle sought that "the Commission set aside the disciplinary decision taken by the Respondent against the Appellant…"72 [121] That remedy was later amended such that the department "…should rescind the proposed disciplinary action of termination of employment, and that no disciplinary action should be taken against the Appellant."73 [122] The PS Act at s 194 sets out the types of 'decisions' which may be appealed. That includes a decision to impose discipline.74 [123] However, the Decision Letter provides as follows: I am currently giving serious consideration to imposing the following disciplinary action: • termination of your employment.75 [124] In considering what constitutes a decision, Cullinane J found in Ambrey v Oswin that: A decision must, for the purposes of the act be one which is "final --- operative and determinative - -- in a practical sense of the issue in fact falling for --- consideration."76 [125] Further, White J in Barker v Queensland Fire and Rescue Authority found that a decision: … must have a quality of finality, not being a step taken on the way to the possible making of an ultimate decision. It must have the essential quality of being a substantive as distinct from a procedural determination …77 [126] The proposal of a disciplinary action - followed by an invitation for submissions as to "why the above disciplinary action should not be imposed"78 within a reasonable timeframe - is not a final and operative decision. It is a procedural determination that further action may be taken. 72 Appeal Notice filed 11 June 2021, Attachment 1, 2 [10]. 73 Appellant's Submissions filed 23 June 2021, 5 [45]. 74 Public Service Act 2008 (Qld) s 194(1)(b)(i). 75 Correspondence from Mr Darren Hegarty, Assistant Chief Operating Officer, Youth Justice, Statewide Services, Operations and Commissioning to Mr Biddle dated 21 May 2021 ('the Decision Letter'), 4. 76 [2004] QSC 224 [32] citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337. 77 (2000) QSC 395. 78 Correspondence from Mr Darren Hegarty, Assistant Chief Operating Officer, Youth Justice, Statewide Services, Operations and Commissioning to Mr Biddle dated 21 May 2021 ('the Decision Letter'), 5. -- 39 of 40 -- 40 [127] That was also made clear by the following inclusion: Opportunity to respond In providing natural justice to you, no final decision about the disciplinary action to be taken will be made until you have had the opportunity to formally respond.79 [128] As such, the 'proposed' disciplinary action is not appealable, as it is not a decision. Conclusion [129] Through this appeal, Mr Biddle has rejected the proposed disciplinary penalty and has argued that the disciplinary findings on the four allegations were not fair and reasonable. [130] Having carefully considered all the evidence before me, including the CCTV and BWC footage, I have accepted that is was reasonably open to the delegate to find the four allegations to be substantiated. [131] I have recognised that the delegate has not yet 'determined' the disciplinary penalty to apply to Mr Biddle, but rather has only 'proposed' it. The determination of an "appropriate and proportionate disciplinary action" is informed by several factors contained in cl 8.5(d) of the Discipline Directive detailed at paragraph [49]. [132] With the release of this Decision, the department's paused disciplinary process will likely resume at the point of requesting Mr Biddle's written response to the proposed disciplinary penalty of "termination of employment". [133] I order accordingly. Order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. 79 Correspondence from Mr Darren Hegarty, Assistant Chief Operating Officer, Youth Justice, Statewide Services, Operations and Commissioning to Mr Biddle dated 21 May 2021 ('the Decision Letter'), 5. -- 40 of 40 --