Crime & Corruption Commission v Dawes & Anor [2017] QCAT 66

CITATION: Crime & Corruption Commission v Dawes & Anor [2017] QCAT 66 PARTIES: Crime and Corruption Commission (Applicant) v Superintendent Mark Kelly Sergeant Gregory Adam Dawes (Respondents) APPLICATION NUMBER: OCR131-16 MATTER TYPE: Occupational regulation matters HEARING DATE: 15 December 2016 HEARD AT: Brisbane DECISION OF: Member Howard DELIVERED ON: 6 March 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The review application filed by the Crime and Corruption Commission is struck out. CATCHWORDS: POLICE – EXTERNAL OVERSIGHT – Review of internal disciplinary proceedings – where allegation of breach of discipline made and substantiated against officer – whether reviewable decision Crime and Corruption Act 2001 (Qld), s 15, s 219BA, s 219G, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 17, s 18, s 19, s 20, s 21, s 22, s 23, s 24 Police Service Administration Act 1990 (Qld), s 1.4, s 6.9 s 7.2, s 7.4, s 7A.4, s 7A.5, s 9.3 Police Service (Discipline) Regulations 1990 (Qld), s 4 Arndt v Crime and Misconduct Commission [2013] QCATA 340 CMC v Deputy Commissioner & Chapman [2010] QCAT 564 -- 1 of 11 -- 2 Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384 Crime & Corruption Commission v Assistant Commissioner Dawson & Anor. [2017] QCAT 37 Crime & Misconduct Commission v Acting Deputy Commissioner Barron & Alexander [2014] QCAT 241 Crime and Misconduct Commission v Deputy Commissioner Barnett & Thomas [2013] QCAT 365 Crime & Corruption Commission v Deputy Commissioner Gollschewski & Anor (No 2) [2014] QCAT 488 Crime & Corruption Commission v Deputy Commissioner Pointing & O’Sullivan [2016] QCAT 510 Crime and Misconduct Commission v Flegg & Anor [2012] QCAT 74 Flegg v CMC & Anor [2014] QCA 42 Flegg v Crime and Misconduct Commission & Anor [2013]QCA 376 PMT Partners Pty Ltd v Australian National Parks and Wildlife Service (1995) 184 CLR 301 APPEARANCES: APPLICANT: Mr M. Copley QC instructed by the Official Solicitor to the Commissioner for Crime and Corruption FIRST RESPONDENT: SECOND RESPONDENT: Mr S. McLeod, Counsel Mr T. Schmidt, Counsel REASONS FOR DECISION [1] The Crime and Corruption Commission (CCC) applied to the Queensland Civil and Administrative Tribunal (QCAT) for review of a decision of Superintendent Mark Kelly about disciplinary action taken against Sergeant Gregory Dawes. The CCC’s application nominated two bases. Firstly, it says that Superintendent Kelly incorrectly decided that the substantiated conduct of Mr Dawes was a breach of discipline, when it should have been determined to be misconduct. Secondly, the CCC says that the sanction imposed by Superintendent Kelly does not reflect the seriousness of the conduct engaged in by Mr Dawes. [2] Mr Dawes has filed an application seeking orders that the review application of the CCC be struck out pursuant to the Queensland Civil and -- 2 of 11 -- 3 Administrative Tribunal Act 2009 (Qld) (QCAT Act) on the basis that it is misconceived.1 In essence, Mr Dawes argues that the decision of Superintendent Kelly is not a reviewable decision and therefore the Tribunal has no jurisdiction for the review. Superintendent Kelly agrees. The circumstances giving rise to the disciplinary action against Sergeant Dawes [3] On the morning of 8 March 2015, a report was made by a ‘triple 0’ telephone call to a senior police constable at a regional Queensland police station about a missing 83 year old person. The missing person was considered at high-risk because of his age. Although Mr Dawes was not on duty at the time, the senior constable informed Mr Dawes of the report. Mr Dawes told the senior constable to check local hospitals and medical centres. He did not offer any further advice or check on progress of the investigation. [4] The senior constable made enquires during the day, but did not notify the on-call inspector of police or search and rescue personnel. Before completing his shift, the senior constable spoke with the relevant police communications centre and spoke with another sergeant, who did not notify the on-call inspector or search and rescue personnel. [5] The following day, Mr Dawes and the senior constable had commenced duty when a member of the public approached them and again informed about the missing person, who had not returned home the previous day. [6] Mr Dawes and the senior constable took no action at that stage. They attended scheduled training until about midday. When they subsequently returned to the police station, they then notified the relevant search and rescue co-ordinator of the missing person’s details. [7] The missing person was subsequently located deceased in a National Park in the locality. The disciplinary action taken against Sergeant Dawes [8] An internal investigation ensued. [9] Superintendent Kelly provided Mr Dawes with a notice entitled ‘Direction to attend a disciplinary hearing – Breach of discipline’. The notice relevantly advised Mr Dawes that (emphasis original): By virtue of the provisions of Sections 7.2 and 7.4 of the Police Service Administration Act 1990 and s.4 of the Police Service (Discipline) Regulations 1990, it is my duty to take such action in relation to the following matters that I consider, if substantiated, constitute breaches of discipline. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47. -- 3 of 11 -- 4 [10] The notice set out the disciplinary charge against Mr Dawes, alleging breach of the Commissioner’s directions in failing to: (a) Take adequate action in relation to a high risk person; (b) Notify Search and Rescue personnel or the on-call Commissioned Officer; and (c) Ensure the efficient and effective deployment and management of [a Senior Constable] who was under your control in compliance with Service policy and procedures. [11] Superintendent Kelly found the disciplinary charge substantiated. He found the conduct was a breach of discipline. He imposed a sanction of two penalty points. The legislative framework for review of police disciplinary decisions in QCAT under the Crime and Corruption Act 2001 (Qld) [12] Among its other functions, the CCC has, what might be broadly described as, an oversight role over the manner in which the Queensland Police Service (QPS) deals with police misconduct. [13] The Crime and Corruption Act 2001 (Qld) (CCC Act) provides that the CCC (or a prescribed person2 against whom the decision was made) may apply for review of a reviewable decision and QCAT may determine the disciplinary proceeding.3 For present purposes, it is sufficient to note that a prescribed person includes an officer (or former officer) who is the subject of the reviewable decision. [14] The CCC Act defines reviewable decision, as follows: 219BA Meaning of reviewable decision (1) A reviewable decision means— (a) a decision made in relation to an allegation of corruption against a prescribed person, other than a decision made by a court or QCAT; or (b) a finding mentioned in the Police Service Administration Act 1990, section 7.4(2A)(b) or 7A.5(1)(b) that corruption is proved against an officer. (2) In this section— 2 ‘Prescribed person’ is defined in Crime and Corruption Act 2001 (Qld), Schedule 2 definition ‘prescribed person’ (which refers to s 50); as modified in s 219BA(2) for the section. 3 Crime and Corruption Act 2001 (Qld), see s 219B, s 219C, s 219G, s 219H and s 219J. -- 4 of 11 -- 5 decision, made in relation to a disciplinary allegation of corruption, if a disciplinary declaration is made, includes the disciplinary declaration. Note— A reviewable decision may also involve a failure to make a disciplinary declaration. disciplinary declaration means a disciplinary declaration made under— (a) the Public Service Act 2008, section 188A; or (b) the Police Service Administration Act 1990, section 7A.2(2). prescribed person, in relation to a prescribed person mentioned in section 50(4), definition prescribed person, paragraphs (a)(ii) and (b)(ii), means— (a) a prescribed person against whom a disciplinary declaration has been made; or (b) in relation to an appeal4 started by the commission under section 219G— (i) a prescribed person mentioned in paragraph (a); or (ii) a prescribed person against whom a disciplinary declaration has not been made if a ground of appeal states that a disciplinary declaration should have been made. [15] For the CCC Act, corruption is defined as corrupt conduct5 or police misconduct.6 Police misconduct is relevantly defined in the CCC Act, as follows: police misconduct means conduct, other than corrupt conduct, of a police officer that— (a) is disgraceful, improper or unbecoming a police officer; or (b) shows unfitness to be or continue as a police officer; or (c) does not meet the standard of conduct the community reasonably expects of a police officer.7 [16] By virtue of these provisions police misconduct meets the definition of corruption in the CCC Act. 4 Despite the reference in s 219BA to an ‘appeal’, s 219G provides, as discussed above, for review. A review is a merits review conducted in QCAT’s review jurisdiction:(the proceeding is not an appeal conducted in the Tribunal’s appeal jurisdiction): see for example, Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384; and CMC v Deputy Commissioner & Chapman [2010] QCAT 564. 5 ‘Corrupt Conduct’ is defined in Crime and Corruption Act 2001 (Qld), s 15. 6 Crime and Corruption Act 2001 (Qld) Schedule 2, definition of ‘corruption.’ 7 Ibid ‘police misconduct.’ -- 5 of 11 -- 6 [17] The Police Service Administration Act 1990 (Qld) (PSA Act) provides broadly (among other things) for disciplinary action to be taken against police officers by more senior police officers. Pursuant to s 7.4 of the PSA Act, an officer is liable to disciplinary action in respect of the officer’s conduct, which a prescribed officer (an officer duly authorised under the regulations) considers to be misconduct or a breach of discipline, as provided for in the regulations.8 [18] The PSA Act defines disciplinary action as action for misconduct, corrupt conduct or breach of discipline.9 It defines misconduct in similar terms to those used to define police misconduct in the CCC Act: as follows: misconduct means conduct that— (a) is disgraceful, improper or unbecoming an officer; or (b) shows unfitness to be or continue as an officer; or (c) does not meet the standard of conduct the community reasonably expects of a police officer. 10 [19] The PSA Act defines breach of discipline as follows: breach of discipline means a breach of this Act, the Police Powers and Responsibilities Act 2000 or a direction of the commissioner given under this Act, but does not include misconduct.11 [20] Under s 7.4(2A) of the PSA Act, if the prescribed officer decides an allegation of misconduct brought against the officer, or when deciding an allegation of breach of discipline brought against the officer, finds misconduct, then a QCAT information notice must be given to the officer and the CCC for the decision. Similarly, pursuant to (s 7A.4 and) s 7A.5 (respectively), if the commissioner makes a disciplinary declaration/decision against a former officer about an allegation of misconduct or makes a finding of misconduct in deciding an allegation of breach of discipline, then the commissioner must give (the former officer and) the CCC a QCAT information notice.12 [21] A police officer aggrieved by a decision against him/her for a breach of discipline may apply under s 9.3 of the PSA Act for a review by a commissioner for police service reviews. 8 Police Service Administration Act 1990 (Qld), s 7.4(2) and s 7.4(1). 9 Ibid s 1.4, definition, ‘disciplinary action.’ 10 Ibid ‘misconduct.’ 11 Ibid ‘breach of discipline.’ 12 Although the wording in s 7A.4 of the Police Service Administration Act 1990 (Qld) differs from the wording s7.4(2A) and s 7A.5 (in that s 7A.4 does not specifically refer to a finding of misconduct when a breach of discipline was brought against the officer), s 7A.4(3) nevertheless requires a QCAT notice be given to a former officer if an allegation of misconduct is made or a finding of misconduct is made. Accordingly, it appears that the effect is the same. -- 6 of 11 -- 7 The parties submissions about the ambit of reviewable decisions in QCAT under the legislative scheme [22] The CCC submits that whether a decision has been made ‘in relation to’ an allegation of corruption for the purposes of s 219BA(1)(a) of the CCC Act, must be determined by considering the substance of the allegation itself. It says that it is not determined according to either, the categorisation of the conduct in the framing of a disciplinary charge as misconduct or a breach of discipline, or the decision-maker’s finding that it is a breach of discipline. It argues that the words, ‘in relation to’ are broad, requiring some connection between the two relevant subject matters,13 namely here, a ‘decision’ and ‘an allegation’ of corruption.14 The CCC submits that ‘an allegation,’ should be interpreted in s 219BA(1)(a) according to its dictionary definition, that is, ‘a mere assertion made without proof.’15 [23] It submits that despite the preliminary categorisation of conduct as either misconduct or a breach of discipline, a decision-maker under the PSA must determine the category it falls into. As here, part of Superintendent Kelly’s disciplinary decision is his determination about whether the substantiated conduct was misconduct or a breach of discipline. The CCC argues that his decision about that issue did not define the decision: it says that in substance, it was a decision in relation to an allegation of misconduct. Therefore, it submits, it is a reviewable decision pursuant to the CCC Act. [24] The Crime and Misconduct and Other Legislation Amendment Act 2014 (Qld) had the effect of changing the word ‘misconduct’ to the word ‘corruption’ in s 219BA.16 Mr Dawes submits that, despite this change in the terminology, the earlier decision of the Appeal Tribunal in Arndt v Crime and Misconduct Commission,17 about the meaning of the phrase, ‘a decision in relation to an allegation of misconduct’ remains relevant. Relevantly, the Appeal Tribunal found that ‘an allegation of misconduct’ means a formal charge of misconduct against an officer.18 [25] Mr Dawes submits that the PSA Act in s 7.4(2A) provides only for a QCAT notice to be given where an allegation of misconduct is decided, (irrespective of how the allegation is classified following the determination), and where an alleged breach of discipline is found to be misconduct by the decision-maker. He submits that, relevantly, no such notice is provided for when an allegation of breach of discipline is brought, and that allegation is substantiated as a breach of discipline.19 He submits that the CCC does not have standing to bring an application for review of the decision made by 13 Relying upon PMT Partners Pty Ltd v Australian National Parks and Wildlife Service (1995) 184 CLR 301. 14 Submissions filed by the Crime and Corruption Commission on 8 December 2016. 15 Ibid [14]. 16 Section 94, and schedule 1. 17 [2013] QCATA 340. 18 Ibid [66]-[74]. 19 Submissions of Sergeant Dawes filed with the Application for Strike out on 19 October 2016. -- 7 of 11 -- 8 Superintendent Kelly. Further, he submits that QCAT does not have jurisdiction to determine the review application. Accordingly, he argues that the application is misconceived. [26] In essence, Superintendent Kelly agrees with Mr Dawes’ construction of the legislative scheme. Is Superintendent Kelly’s decision a reviewable decision? [27] The CCC contends that the decision of Superintendent Kelly is a reviewable decision under s 219(BA)(1)(a) of the CCC Act. [28] The QCAT Act provides that QCAT has jurisdiction to review a decision as conferred by an enabling Act.20 The CCC Act is an enabling Act. Relevantly, the CCC may apply to QCAT for review of a reviewable decision.21 QCAT must determine the review as provided for in the QCAT Act22 as modified23 by the CCC Act.24 [29] As discussed, a reviewable decision under the CCC Act is defined in s 219BA. Pursuant to s 219BA(1)(a), it includes a decision made in relation to an allegation of corruption against a prescribed person (other than a decision made by QCAT or a court). Corruption, as defined in the CCC Act, includes police misconduct. It does not include, or refer to, a breach of discipline. [30] Pursuant to s 219BA(1)(b), a reviewable decision also includes a finding within s 7.4(2A)(b) or s 7A.5(1)(b) of the PSA Act. Section 7.4(2A)(b) and s 7A.5(1)(b) of the PSA Act both refer to a finding of misconduct made when an allegation of breach of discipline was brought, respectively against an officer or former officer, by (again respectively) a prescribed officer or the commissioner.25 In each instance, the commissioner must give a QCAT information notice to the CCC.26 [31] Broadly, on a plain reading, both limbs of the definition of reviewable decision appear to provide for review of a decision about serious allegations and findings, which constitute corrupt conduct or police misconduct. [32] The PSA Act is not an enabling Act for QCAT, but it is part of the overall legislative scheme for police discipline. The PSA provides for disciplinary action to be brought against an officer for misconduct, corrupt conduct or breach of discipline. Police misconduct (in the CCC Act) and misconduct in 20 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 17(1). ‘Enabling Act’ is defined in QCAT Act s 6, esp s 6(2). 21 Crime and Corruption Act 2001 (Qld), s 219G(1). 22 Queensland Civil and Administrative Tribunal Act 2009 (Qld), esp ss 17-24. 23 Ibid s 6 and s 7, esp s 7(3). 24 Crime and Corruption Act 2001 (Qld), esp s 219G-219L. 25 Police Service Administration Act 1990 (Qld), Part 7A provides for the commissioner to take disciplinary action and make disciplinary declarations against former officers. 26 Police Service Administration Act 1990 (Qld), s 7.4(2A), and s 7A.5(2). QCAT notices must also been given to the officer or former officer: s 7.4(2A) and s 7A.4(3). -- 8 of 11 -- 9 the PSA Act are consistently defined. In interpreting the CCC Act, it is reasonable to proceed, in the absence of any legislative contra-indication, on the basis that Parliament intended that the various legislative components of the overall scheme for police discipline are cohesive. [33] Having regard to the definitions for breach of discipline and misconduct in the PSA, it appears that allegations (and findings) of breaches of discipline are intended to cover inappropriate and unacceptable conduct of a less serious nature, than allegations of misconduct. [34] The PSA Act provides when a QCAT information notice must be given. In particular, the PSA Act provides for a QCAT information notice to be given in circumstances when an allegation of misconduct is decided against an officer or when an allegation of breach of discipline is brought against an officer, but it is found to be misconduct: PSA Act s 7.4(2A). Similarly, a QCAT information notice must be given to (a former officer and) the CCC, by the commissioner when he decides an allegation of misconduct against a former officer or finds misconduct: PSA s 7A.4 and s 7A.5. In the latter case, consistently with s 219BA(1)(b) of the CCC Act, a QCAT notice is required to be given to the CCC in respect of an allegation of breach of discipline which is found to be misconduct: PSA s 7A.5(1)(b). [35] Consistently, with my plain reading of s 219BA(1), that a reviewable decision under the CCC Act does not extend to review of a decision where a breach of discipline is alleged and found against an officer, a QCAT information notice is not required to be given under the PSA Act in circumstances that an allegation of breach of discipline, brought against an officer (or former officer), is substantiated as a breach of discipline. Under the PSA, a different review process is provided for an officer in those circumstances. In particular, an officer aggrieved by action against him/her for breach of discipline may apply for review of the decision by a commissioner for police service reviews, pursuant to s 9.3 PSA Act, not QCAT. [36] As Mr Dawes submits, that the Crime and Misconduct and Other Legislation Amendment Act 2014 (Qld), as far as it relates to s 219BA, effectively changed the word misconduct to corruption. In Arndt, the Appeal Tribunal relevantly held an allegation of misconduct against an officer in s 219BA(1)(a), meant a formal allegation of misconduct. In Arndt, disciplinary action was not taken against an officer, instead an Assistant Commissioner decided to provide managerial guidance to Mr Arndt in respect of his actions during the arrest of an elderly man in the Queen Street Mall. Following the events, the CMC (as it then was) received a complaint from the person arrested. A CMC investigation concluded that the allegation of unlawful assault was substantiated. The CMC provided its report to QPS for disciplinary action to be taken. Arising out of the events, Mr Arndt was found guilty of assault by a Magistrate on a private prosecution. [37] Despite acceptance by the Assistant Commissioner of the judicial findings that the force used by Mr Arndt was not justified; that the allegation was substantiated; and that Ethical Standards Command had concluded that -- 9 of 11 -- 10 there was sufficient evidence of misconduct, disciplinary action was not brought against Mr Arndt. The CMC commenced review proceedings. Mr Arndt was successful, on appeal, in having the review application struck out. The Appeal Tribunal held that to be a reviewable decision within s 219BA, the decision must be a decision taken in disciplinary action against the officer.27 It further held that in s 219BA, ‘an allegation of misconduct’ (now, ‘corruption’) was not a mere assertion without proof: an allegation about misconduct only became an allegation of misconduct once disciplinary action was taken with respect to the allegation. [38] My plain reading interpretation of s 219BA(1), is not inconsistent with the Appeal Tribunal’s findings in Arndt. Unlike in Arndt, in Mr Dawes case, a formal allegation was brought against Mr Dawes in disciplinary action taken by Superintendent Kelly. However, the allegation is an allegation of a breach of discipline. In deciding the allegation, Superintendent Kelly found the allegation substantiated and found it to be a breach of discipline. [39] The construction of the legislation contended for by the CCC is not consistent with my plain reading of s 219BA of the CCC Act. Neither is it consistent with the overall police disciplinary scheme. It would appear to create significant unwieldiness in the operation of the review regime. In practice, despite a prescribed officer alleging and later finding that conduct was a breach of discipline, it would allow an application for review to be filed alleging, as here, that the conduct was misconduct. This would appear to necessitate a preliminary determination (before the review could proceed) about whether the conduct alleged in fact constituted misconduct. [40] I observe also that if the CCC’s argument is correct, Parliament did not provide a mechanism to ensure that the CCC and the prescribed officer became aware of a review right in those circumstances. There is no provision for a QCAT notice to be given when an allegation of breach of discipline is found to be substantiated as a breach of discipline. [41] I conclude that ‘an allegation’ is not to be given its dictionary definition and that it is not permissible look at the substance of an allegation to determine whether it was an allegation of misconduct. Further, for completeness, ‘a decision in relation to an allegation of corruption’ in s 219BA(1)(a) does not include an alleged breach of discipline which is substantiated as a breach of discipline. [42] I find that in Mr Dawes case, the decision the CCC seeks to review is not an allegation of corruption. No allegation of misconduct (which would fall within the definition of corruption) was brought against Mr Dawes in disciplinary action. The disciplinary allegation brought against Mr Dawes was for a breach of discipline. It was substantiated as a breach of discipline. [43] Given my interpretation of the legislative scheme, there is no reviewable decision within the meaning of s 219BA(1)(a) of the CCC Act about Mr 27 Arndt v CMC and Doyle [2014] QCATA 340, [34]-[58], esp [58]. -- 10 of 11 -- 11 Dawes. CCC has no standing to bring the review application which is the subject of these proceedings and QCAT has no jurisdiction to hear it. Conclusions and Orders [44] In light of my conclusions, I find that the CCC’s review application is misconceived. I therefore make orders dismissing the application for review under s 47 of the QCAT Act. Observations [45] Despite my construction of the relevant legislative provisions, the concern of the CCC that the substance of the substantiated allegations amounts to misconduct and warrants a significantly greater penalty than the one imposed, may have foundation. In circumstances concerning somewhat similar conduct of other officers, the conduct has been found to be misconduct,28 resulting in more substantial sanctions, including (suspended) dismissal and demotion. [46] (Similarly, in contra-distinction to the managerial action given to the officer in Arndt, in other instances of alleged excessive or inappropriate use of force by officers, disciplinary action for misconduct has been brought against officers, and substantiated as misconduct.29 The decision in Arndt, not to take disciplinary action, appears to be inconsistent.) [47] It may not have been Parliament’s intention to limit the CCC’s oversight role in Mr Dawes’ circumstances (nor those of Mr Arndt), such that conduct which may in substance be serious misconduct, is treated internally by QPS as a breach of discipline resulting in a minimal sanction (or in Mr Arndt’s case, disciplinary action is not brought against the officer). These cases may have identified unintended consequences of the current definition of reviewable decision in the CCC Act. [48] I suggest that these reasons for decision (and my observations) be referred to the Honourable Attorney-General, to consider whether legislative amendments are appropriate. 28 Flegg v CMC & Anor [2014] QCA 42, Flegg v Crime and Misconduct Commission & Anor [2013] QCA 376; Crime and Misconduct Commission v Flegg & Anor [2012] QCAT 74; and Crime and Misconduct Commission v Deputy Commissioner Barnett & Thomas [2013] QCAT 365. 29 See for example, Crime & Misconduct Commission v Acting Deputy Commissioner Barron & Alexander [2014] QCAT 241;Crime & Corruption Commission v Deputy Commissioner Gollschewski & Anor (No 2) [2014] QCAT 488; Crime & Corruption Commission v Deputy Commissioner Pointing & O’Sullivan [2016] QCAT 510; Crime & Corruption Commission v Assistant Commissioner Dawson & Anor. [2017] QCAT 37. See also the comparative decisions discussed in those reasons for decision. -- 11 of 11 --